10 - THE PRESIDENCY AND THE EXECUTIVE BRANCH
When the founders created the three branches of the government, they disagreed about the amount of power to be vested in the executive. Many feared more than anything a strong president whose powers could be compared to those of the king of England. Others believed, in the words of Alexander Hamilton, that "energy in the executive is a leading characteristic of good government." As the modern presidency has evolved, Hamilton's point of view seems to prevail today, as the president is the single most powerful individual in the American political system. Although the checks and balances set in motion in 1787 still operate, the presidency described in the Constitution is much different from the one that we have today.
THE CONSTITUTIONAL PRESIDENCY
Article II of the Constitution defines the qualifications, powers, and duties of the president and carefully notes some important checks of the executive branch by the legislature.
Qualifications
Powers and Duties
The Constitutional powers and duties of the president are very limited. Those specifically granted are as follows:
According to Article II, Section One, the president holds "the executive power" of the United States. The "executive" was meant to "execute", or administer the decisions made by the legislature. This phrase at least implies an executive check on the legislature, and in fact, has been the source of presidential power over the years.
The president is Commander in Chief of the armed services. The intention of the founders was to keep control of the military in the hands of a civilian, avoiding a military tyranny. In Madison's words (Federalist No. 51), "Ambition must be made to counteract ambition."
The president makes treaties with foreign nations, but only with the "advice and consent" of the Senate. Two-thirds of the Senate must approve a treaty; a president's signature is not enough to make it binding. This provision is a check of the executive by the legislature.
The president appoints ambassadors, other public officers, and judges of the Supreme Court, but again, only with the "advice and consent" of the Senate. Two-thirds must confirm the appointments. Other lower positions may be appointed by the president alone, but those positions are defined by Congress.
A president can veto a legislative bill by returning it, along with a veto message or explanation, within ten days to the house in which it originated. Congress in turn may override the veto by a two-thirds vote. The president may also exercise the pocket veto. If the president does not sign the bill within ten days and Congress has adjourned within that time, the bill will not become law. Of course, the pocket veto can only be used just before the term of a given Congress ends.
THE EVOLUTIONARY PRESIDENCY
From the very beginning, informal influences have shaped the presidency. The framers almost certainly fashioned the president in the image of George Washington, the man unanimously selected to first occupy the office. Washington's qualities of wisdom, moderation, and dignity defined the more formal duties and powers, and his nonpartisan attitudes created expectations for behavior in presidents that followed. Other strong presidents have contributed to the presidency as it exists today, such as Andrew Jackson, who first used the veto power extensively; Abraham Lincoln, who carried the meaning of "commander in chief" to new heights during the Civil War; and Franklin Roosevelt, who formulated sweeping New Deal policies that were finally checked by the Supreme Court. Many informal qualifications, powers, and duties have evolved that are not mentioned in Article II of the Constitution.
Presidential Character
Just as early presidents were held to the standards of Washington's personal qualities, modern presidents are judged in terms of the public perception of their personality and character. In his book The Presidential Character, Professor James Barber assessed presidents by two character-based criteria: active vs. passive inclinations and positive vs. negative points of view. He concluded that these basic personality characteristics shape a president's approach to his job and largely determine important decisions. For example, Franklin Roosevelt's positive, activist character forged the New Deal programs and U.S. foreign policy during World War II. Likewise, Richard Nixon's negative, activist character made it difficult for him to mobilize support from Congress, the media, and the public, even though he actively pursued his ambitious foreign policy goals. A passive, positive President, such as Gerald Ford, may be genial and well-liked, but the lack of aggressive goals and administration of policy make his presidency an undistinguished one. Scholars disagree over whether Barber's theories work, but none denies the importance of personality and character in presidential decisions.
The President as Morale Builder
The founders had no way of knowing the evolutionary importance of the symbolic and morale-building functions a president must perform. People turn to their presidents for meaning, healing, assurance, and a sense of purpose. The historian, Henry Adams, described this function with these words:
The American President "resembles a commander of a ship at sea. He must have a helm to grasp, a course to steer, a port to seek."
The president is expected to help unify the nation, represent our common heritage, and create a climate that encourages diverse elements to work together.
The Responsibility of Setting Priorities
The Constitution provides the basis for the important power of setting priorities for the nation. According to Article Two, Section Three, "He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."
Even though Congress is charged with passing legislation, the president is expected to make policy proposals in many areas. Presidents often initiate foreign policy, economic goals and plans, and programs that improve the quality of life of citizens. Franklin Roosevelt set the precedent when he shepherded his New Deal policies through the legislature, taking responsibility for programs to get the country out of the Great Depression.
Sometimes initiatives are outlined as campaign issues and are refined by the executive office staff, special task forces, and by Congress. Initiatives may fail, as did President Clinton's health care proposals in 1993. Presidents generally have more leeway in foreign policy and military affairs than they have in domestic matters, largely because the founders anticipated a special need for speed and unity in our relations with other nations.
The Power of Persuasion
An effective president is a good politician, a mobilizer of influence in the American political system. Because his formal powers are limited, he must spend much time persuading people
The president's persuasive powers are aimed at three audiences: fellow politicians and leaders in Washington, party activists and officeholders outside Washington, and the public, with its many different views and sets of interests. All three audiences influence the decision-making process, and the president has the visibility and power to persuade them to listen to his priorities. A powerful president is often at the center of the give-and-take negotiations among these groups, and an effective persuader can be the catalyst that makes its all work.
The Changing Veto Power
Until recently, presidents did not have the right to veto particular subsections or items within bills passed by Congress. They could only veto an entire bill. The Line Item Veto Act of 1996 gave the president the authority to cancel individual sections of appropriations bills he has signed into law. The president's veto of these items may be overriden by the same two-thirds vote required to override a general presidential veto.
Supporters reason that presidents are responsible for the budget, so they need adequate authority to fight deficit spending. The line item veto allows presidents to delete waste and pork-barrel spending intended to help members of Congress win reelection.
The Supreme Court upheld the constitutionality of the Line Item Veto Act in 1997 in Raines v. Byrd, when it denied members of Congress the standing in court to challenge the act. All recent presidents have advocated the long anticipated reform, and it remains to be seen how it will affect the long-term relationship between the executive and legislative branches.
Executive Privilege
The Constitution says nothing about presidential rights to keep private communications between himself and his principal advisers, but presidents have traditionally claimed the privilege of confidentiality. Their claim is based on two grounds. First, separation of powers keeps one branch from inquiring into the internal workings of another branch. Second, presidents and advisers need the assurance of private discussions to be candid with one another without fear of immediate press and public reaction.
Even though Congress has never liked executive privilege, the right was not questioned seriously until 1973 when the Supreme Court addressed the issue directly. As a part of the Watergate investigations, a federal prosecutor sought tape recordings of conversations between Richard Nixon and his advisers. Nixon refused to give the tapes over, claiming executive privilege. In United States v. Nixon the Court held that there is no "absolute unqualified Presidential privilege of immunity from judicial process under all circumstances." In this case, executive privilege would block the constitutionally defined function of federal courts to decide criminal cases. The decision restricted executive privilege, but it did allow that there may be a sound basis for the claim of executive privilege. It seems likely that presidents will be able to continue to get private advice, except in unusual cases such as Watergate.
Impoundment of Funds
Impoundment is the presidential practice of refusing to spend money appropriated by Congress. Although many previous presidents impounded funds, again the test case came with Richard Nixon. A major goal of his administration was to reduce federal spending, and when the Democratic Congress passed spending bills, he responded by pocket-vetoing twelve bills and then impounding funds appropriated under other laws that he had not vetoed. Congress in turn passed the Budget Reform Act of 1974 which required the president to spend all appropriated funds, unless Congress approved the impoundment. Federal courts have upheld the rule that presidents must spend money that Congress appropriates.
The Issue of "Gridlock"
Over the past fifty years, a significant trend has developed: divided government, or a government in which one party controls the White House and a different party controls one or both houses of Congress. The only except to this trend occurred between 1993 and 1995 when the Democrats controlled both branches. Divided government returned with the election of 1994 and continued with the election of 1996. Many people criticize this arrangement because it produces "gridlock," or the inability to get anything done because the branches bicker with one another and make decisions difficult. A unique illustration of gridlock occurred in 1995 and 1996 when Congress and the president could not agree on the federal budget, thus shutting down many government operations, including national parks and federal offices, until an agreement could be reached. Even though gridlock may slow the process of decision making, some supporters of divided government believe that it is not necessarily bad and that sometimes better policies can result. Others believe that a unified government is a myth, with struggles between the branches a natural part of the give and take of checks and balances. In this scenario, gridlock may be just as serious between branches controlled by both parties as those under "divided government."
OTHER IMPORTANT MEMBERS OF THE EXECUTIVE BRANCH
The Vice President
"I do not choose to be buried until I am really dead."
A nineteenth century presidential hopeful, Daniel Webster, declined the vice presidency, with the above words, expressing a sentiment repeated by many vice-presidents over time. The founders paid little attention to the office and assigned it only two formal duties:
The most important function of the vice president is to take over the presidency if the president is unable to fill his term. That has only happened nine times in history, but of course, the vice president must be qualified to take over the presidency.
A vice president's role in any administration is almost entirely up to the president. Although the original constitution designated the runner-up for the presidency as the vice president, Amendment XII was passed in 1804, which provided for electoral vote for a president/vice-president slate. Traditionally, the president chooses the vice president, usually based on a "balance" to the ticket (a different region, age, popular base, party subgroup).
In recent years, presidents have given more and more important duties to vice presidents. They often represent the president ceremonially, sit on important boards or projects, and advice the president on major , sometimes specialized, issues. For example, Al Gore has advised President Clinton on environmental issues and headed a national review of the federal bureaucracy. The vice president is often considered as a presidential candidate when the president's term expires, although George Bush was the first vice president to succeed immediately to the presidency since Martin Van Buren succeeded Andrew Jackson in 1837.
The White House Office
The White House Staff consists of hundreds of people who work for the president and are officed in the White House. The organization of the staff is entirely up to the president, and their titles often do not reveal the functions that they actually perform: "counsel," "counselor," "assistant to the president," "special consultant." These aides are appointed by the president without Senate confirmation, and they may be fired at will. Often they do not serve an entire presidential term.
Before President Clinton, most presidents organized their personal staffs according to either a "pyramid" (with most assistants reporting through a hierarchy to a chief of staff) or a "circular" (with many cabinet secretaries and assistants reporting directly to the president) structure. Clinton has employed an "ad hoc" structure, with task forces, committees, and informal groups of friends and advisers dealing directly with the president. So even though cabinet secretaries and many assistants often have not had direct access to the president, the resulting structure is not totally hierarchical.
The Executive Office of the President
The Executive Office consists of agencies that report directly to the president and perform staff services for him. Some agencies are large bureaucracies. The president appoints the top positions, but unlike the White House Staff positions, they must be confirmed by the Senate. The most important agencies are Office of Management and Budget, Central Intelligence Agency, Council of Economic Advisers, Office of Personnel Management, and Office of the U.S. Trade Representative.
The OMB is one of the most powerful bodies in the government, with broad responsibility for assembling and analyzing figures for the budget, studying the organization and operations of the executive branch, and devising plans for reorganizing various departments and agencies. The OMB employs over 600 staff, many of whom are career civil servants with substantial experience. In recent years the OMB has advocated presidential policies and engineered many budget cuts proposed by the president.
The Cabinet
The Cabinet is the oldest traditional body of the executive branch. The first cabinet members were appointed by Washington to serve as Secretaries of State (Thomas Jefferson), Treasury (Alexander Hamilton), War (Henry Knox), and Justice. From the earliest feuds between Jefferson and Hamilton, the cabinet almost never has served as a deliberative body of presidential advisers. In truth, the cabinet does not have much influence over presidential decisions, nor does it help the president to gain control over the bureaucracy.
Cabinet officers are the heads of fourteen major departments. The order of their creation is important for protocol. When the cabinet meets, the Secretary of State sits on one side and Treasury on the other, and so forth down the table so that the newest departments are the farthest away from the president. They are appointed by the president and must be confirmed by the Senate.
The president has very little power over cabinet departments partly because he cannot appoint more than a small number of all a department's employees. The most important reason that the departments operate independently from the president is that cabinet members spend the large majority of their time on departmental business, and seek to defend and promote their own organizations in cabinet meetings. A result is that they often compete with one another for precious resources and attention, represent the departments to the president rather than functioning as the president's representative to the departments.
"Independent" Agencies and Commissions
The president also appoints people to agencies and commissions that by law often have an independent status. In contrast to the heads of "executive" agencies, the heads of independent agencies serve by law for fixed terms of office and can be removed only "for cause." The agencies are created by Congress, and include such well-known bodies as the Federal Reserve Board, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Interstate Commerce Commission, and the Securities and Exchange Commission.
SELECTION OF THE PRESIDENT
The Constitutional Process
The method of selection of the president was one of the most controversial topics at the Constitutional Convention. Most of the framers did not trust the public to directly elect the president, but under the checks and balances system, neither could Congress be allowed to select the head of the executive branch. The solution to the dilemma was to create an electoral college, a group of electors chosen by each state in whatever manner it wished. The electors were to meet in each state capital and vote for president and vice president. Many framers believed that states would vote for favorite sons and that often the election would be decided by the House of Representatives, with each state delegation casting one vote. It did not work out as they expected, largely because they did not foresee the important role that political parties would play in presidential selection.
The Role of Parties
Today, all major presidential candidates are selected by their political parties, even though Ross Perot tried to capture the presidency in 1992 without the backing of a party. In 1996, he proved the importance of political parties in the selection process when he tried to run again, but as head of a third party. Presidential candidates are chosen through presidential primaries, and are nominated at a party convention in the summer before a general election in November. The electoral college voters in each state generally are bound to vote for the same candidate that the majority of voters in the state chose. The electoral college is primarily a formality today, but electoral votes can still vary considerably from popular vote.
PRESIDENTIAL TERM, SUCCESSION, AND IMPEACHMENT
The Term of Office
According to the Constitution, the president's elected term of office is four years, but no mention is made of the number of terms a president may serve. By a precedent set by George Washington, who retired after two terms, no president before Franklin Roosevelt served longer than two terms. In the midst of economic depression and a world war, Roosevelt ran for and won a third and fourth term of office, although he died before he completed the last one. Because the tradition was seen as a safeguard against tyranny, Congress added the 22nd Amendment to the Constitution, limiting a president to election to two terms and/or serving no more than ten years. A vice president who becomes president with less than two years remaining in the previous president's term may run for president two times on his own.
Presidential Succession
Among twentieth century presidents, Woodrow Wilson became incapable of carrying out his job after he suffered a stroke, and his wife acted as president. Likewise, Dwight Eisenhower was unable to function as president for several weeks after a debilitating heart attack. The Twenty-fifth Amendment (1967) to the Constitution covers this important problem concerning the presidential term: disability and succession. It permits the vice president to become acting president if the vice president and the cabinet determine that the president is disabled. If the president challenges the executives' decision, Congress decides the issue. The amendment also outlines how a recovering president can reclaim the Oval Office.
The Twenty-fifth Amendment also created a method for selecting a vice president when the office is vacated. The president nominates a new vice president, who assumes office when both houses of Congress approve the nomination by a majority vote. A vice president who assumes the presidency then nominates a new vice president who is also confirmed by Congress. If there is no vice president, then a 1947 succession law governs: next in line are the Speaker of the house, the Senate pro tempore, and the thirteen cabinet officers, beginning with the secretary of state.
The disability provision has never been used, but the vice presidential succession policy has. In 1973, Vice President Spiro Agnew resigned amidst charges of bribery, and President Nixon appointed Gerald Ford in his place. The next year, Nixon resigned as a result of the Watergate scandal, Ford became president, and he appointed Nelson Rockefeller as vice president. For the first time in history, both the presidency and vice presidency were held by appointed, not elected, officials.
The Impeachment Process
The Constitution provides a way to get rid of a discredited president before his term is over, but it is not an easy process. The House of Representatives may, by majority vote, impeach the president for "Treason, Bribery, or other high Crimes and Misdemeanors." Once the House impeaches the president, the case goes to the Senate, which tries the president, with the chief justice of the Supreme Court presiding. By a two-third vote, the Senate may convict and remove the president from office. Only one president has been impeached. Andrew Johnson was impeached by the House in 1868 in the wake of the post-Civil War politics, but the Senate failed to convict him (by a one vote margin), and he remained in office. Richard Nixon came close to impeachment when on July 31, 1974, the House Judiciary Committee voted to recommend his impeachment to the House as a result of the Watergate scandal.
Other civil officers besides the president may be impeached, but the provision has had the most meaning for federal judges, who serve for life and are constitutionally independent of the president and Congress. Fifteen persons in U.S. history have been impeached by the House, and seven have been convicted by the Senate. The process generally has been reserved for the gravest forms of political misconduct.