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Presidency

  The framers created a single-headed office with an electoral base independent of Congress- aim is to create “energy in the executive”

            -But president is given no explicit power independent of Congress

-Presidents have ranged from chief executive (Lincoln, Jefferson, Jackson) to chief clerks (Madison, Monroe, Adams)

-Constitution – presidential powers described in Article II are loosely drawn

            -Presiding wields delegated powers to “faithfully execute” Congressional acts

-Those powers granted by Congress through the passage of laws- can only enforce laws passed by Congress and thus is limited in discovering new sources of executive power

-In Re Neagle (1890) president can be expansive in the inferences he drew from the constitution or from Congressional laws  (equivalent of McCulloch V. Maryland)

Head of State – three powers indicate an intention for the president to be the head of state

                        military- commander in chief

                        judicial- grants reprieves and pardons

                        diplomatic- receives ambassadors

  Legislative Epoch 1800-1933

            Congress sets policy agenda and works cooperatively with the president-            committee system develops strong around 1860

            President’s mostly seen as “chief clerk”

Jackson (war hero + founder of democratic party) and Lincoln (war president + founder of republican) were exceptions

-Fed government was weak- so the potential of executive power was limited

- Most of the federal policies were aimed at expanding commerce and were administered more by congressional committees than the executive

When Congress begins to assert more control over the economy with the Interstate Commerce Act (1887) and the Sherman Antitrust Act (1890)- Congress carefully leaves enforcement to regulatory commissions responsible to Congress

-President linked to King Caucus (pres. Candidates nominated by the parties Congressional representatives) - Convention system emerges in the 1830s which gives the president a power base separate from Congress and exposes candidates to larger social forces and interest groups

The New Deal and the Presidency 1933

The New Deal expands the federal governments role in the economy as well as the regulation of the individual – much of the control of these new powers is put in the hands of a bureaucracy controlled by the president

“First 100 days” - honeymoon period - dramatically changes character of government

            -FDR set legislative agenda

-Expansion into economic matters gave federal government- bureaucracy new power- NLRB v Jones and Laughlin Steel Corporation in 1937 and allows “intrastate” commerce to be regulated

            -Congress begins delegating powers and a pattern emerges

                        1- Congress recognizes problem

                        2- Congress recognized it has neither time nor expertise

                        3- congress sets basic policy and has executive branch

                                    “fill in the details”- that is policy-making

-today- environmental laws say the EPA should establish environmental standards which gives the executive agency leeway in setting environmental policy

Constitutional amendments that affect the presidency 

The 20^th amendment changed the day that the old president left office and the new president was sworn in. This limits the duration of the "lame-duck" president and helps prevent the president from making executive appointments at the last minute that would hinder the incoming president.  By making the amount of time the president has between the election and the swearing in smaller, it limits his ability to make those last second nominations.  The president used to be sworn in on March 4^th, but it was changed to January 20^th in order to shrink the gap.

22nd amendment -- The two-term limit for presidents was not originally written in the constitution, but was instead a tradition that presidents followed.  George Washington declined to have a third term and stepped down, setting the tradition that the president only served two terms.  This tradition continued until FDR was elected to his third term in office.  It was 1940, and FDR had successfully led America out of the depression, and the threat of war was looming as Hitler continued to make gains in Europe.  FDR was elected again in 1944, during the middle of WWII, as many believed that changing power during a war would not be a good idea.  After his death, Truman took office. The congress passed the 22^nd amendment, making the two terms the limit.  The amendment was ratified by the states on February 27^th, 1951.

The 25^th amendment was proposed and later ratified as a result of President Kennedy’s assassination.  It cleared up the line of succession in the case of the president’s death, or inability to perform the duties as president.  That way, if a president survived an attempt on their life, but was left in a coma, there were clear instructions and steps to take on who would be in charge.

If the president is removed from office, dies or resigns his position, the vice president becomes the president. 

If the president is unable to perform their duties as president, the vice president and a majority of the high-ranking officials (ie the cabinet) within the executive department, or a majority of congress, may send to the president pro tempore of the senate and the speaker of the house a written declaration that the president cannot perform his duties.  The vice president shall become acting-president until the president sends his declaration that he is able to perform the duties of the office.

            - This voluntary delegation of power has tilted the national structure away from Congress-centered to president-centered

So do we have an imperial presidency? Has the presidency become too powerful? (especially on foreign policy?)

            -In Re Neagle (1890)-- can the Attorney General (at the direction of the president) appoint federal marshals to protect Supreme Court Justices ?-- yes, because the president has the responsibility to faithfully execute the law and that requires a functioning judiciary and they can't function if they're not protected -- heralds that the president can be expansive in his (so far his) interpretation of powers

-US v Curtis Wright Export Copr(1936) - Congress wanting to stop a dispute in S. America gives the president the power to prohibit arms sales if he determines "that the prohibition of the sale of arms and munitions of war . . . may contribute to the reestablishment of peace between those countries," -- FDR then bans the sales of arms to Bolivia and Paraguay (two of the combatants ) -- but the Curtis Wright company tries to sell 15 machine guns to Bolivia and is prosecuted -- they appeal arguing that Congress did not give the president specific enough authorization for such prosecution -- Court holds that Congress may delegate discretion to the president in foreign affairs that would violate separation of powers in the domestic arena

-US v Pink (1942) - the New York Superintendent of Insurance seizes the assets of the First Russian Insurance Company after the Communist Revolution -- The federal government attempts to assist the Soviet Union in recovering the by arguing that federal agreements require that the money be returned. Court holds that executive agreements can have the force of treaties (is the force of domestic law) but without Senate approval

But also consider              

- Youngstown Sheet and Tube Co v Sawyer (1952) -- Truman seizes the nation's steel mills in an attempt to avert a stricke that could have disrupted the Korean War -- he relies on his power as both Chief Executive Commander and Chief -- the court rejects that argument saying that only Congress can grant the President the authority to seize an industry.

Johnson and Nixon =

            -War Powers Act (1973) passed over Nixon’s veto

-US Troops could only be sent during a declared war, amortization of Congress, or when American troops have been attacked