"He could launch the kind of devastating attack the world has never seen," Cheney said. "He doesn't have to check with anybody.

He doesn't have to call the Congress; he doesn't have to check with the courts.

He has that authority because of the nature of the world we live in.

It's unfortunate, but I think we're perfectly appropriate to take the steps we have."

What could the end of the world look like?

THE PRESIDENCY: POWER THE PRESIDENCY: POWER AND INFLUENCE: How does AND INFLUENCE: How does

the President do it?the President do it?

FoundationsFoundations

Article II: Oath of OfficeArticle II: Oath of Office ““Before he enter on the Execution of his Before he enter on the Execution of his

Office, he shall take the following Oath or Office, he shall take the following Oath or Affirmation:--''I do solemnly swear (or Affirmation:--''I do solemnly swear (or affirm) that I will faithfully execute the affirm) that I will faithfully execute the Office of President of the United States, Office of President of the United States, and will to the best of my Ability, preserve, and will to the best of my Ability, preserve, protect and defend the Constitution of the protect and defend the Constitution of the United StatesUnited States

FoundationsFoundations

Article II, Section 2: “The President shall Article II, Section 2: “The President shall be Commander in Chief of the Army and be Commander in Chief of the Army and Navy of the United States, and of the Navy of the United States, and of the Militia of the several States, when called Militia of the several States, when called into the actual Service of the United into the actual Service of the United States;..”States;..”

FoundationsFoundations

Section 3: “He shall from time to time Section 3: “He shall from time to time give to the Congress Information on the give to the Congress Information on the State of the Union, and recommend to State of the Union, and recommend to their Consideration such Measures as he their Consideration such Measures as he shall judge necessary and expedient; …he shall judge necessary and expedient; …he shall take Care that the Laws be faithfully shall take Care that the Laws be faithfully executed, and shall Commission all the executed, and shall Commission all the Officers of the United States.” Officers of the United States.”

Constitutional DutiesConstitutional Duties“Expressed Powers”“Expressed Powers”

Make treatiesMake treaties Appoint ambassadors and judgesAppoint ambassadors and judges Report to Congress on the state of the UnionReport to Congress on the state of the Union Recommend to Congress measures he thinks Recommend to Congress measures he thinks

are necessary or urgentare necessary or urgent Meet with foreign leaders and ambassadorsMeet with foreign leaders and ambassadors Commander in chiefCommander in chief Faithfully execute the lawsFaithfully execute the laws

EXECUTIVE EXECUTIVE POWER TOOLSPOWER TOOLS

What tools does the What tools does the president use to carry president use to carry

out laws passed by out laws passed by Congress, and when Congress, and when is it appropriate for is it appropriate for the president to use the president to use

these tools?these tools?

Ordinance power

In order for the President to accomplish his In order for the President to accomplish his tasks, he needs the power to give orders. tasks, he needs the power to give orders.

While not expressly stated in the While not expressly stated in the constitution, the ordinance power allows constitution, the ordinance power allows

the President to issue executive orders to the President to issue executive orders to accomplish his administrative tasks.accomplish his administrative tasks.

More and more discretion has been More and more discretion has been granted to the President and the executive granted to the President and the executive branch to make these decisions, due to the branch to make these decisions, due to the wide scope of things Congress regulates, wide scope of things Congress regulates,

they cannot be experts on everything.they cannot be experts on everything.

AppointmentsAppointments

Article II, Section II: “advice and consent”—Article II, Section II: “advice and consent”—Federal judgesFederal judges

Department level positions—Senate approvalDepartment level positions—Senate approval Other agencies, offices: the Plum Book—7,000 Other agencies, offices: the Plum Book—7,000

positions the President can fill!positions the President can fill! Some agencies—have terms that outlast Some agencies—have terms that outlast

Presidents’: Fed Reserve members—12 yearsPresidents’: Fed Reserve members—12 years 1800 aides, staff, etc. “at the pleasure of the 1800 aides, staff, etc. “at the pleasure of the

President”President”

Removal Power

The power to remove undesirable The power to remove undesirable officeholders from the executive branch is officeholders from the executive branch is

also essential to the power of the also essential to the power of the President. How this should occur has been President. How this should occur has been

debated through our history however.debated through our history however.

Myers v. United States

Woodrow Wilson at the end of his term, Woodrow Wilson at the end of his term, and without consulting the senate, and without consulting the senate,

removed Frank Myers as the postmaster of removed Frank Myers as the postmaster of Portland, Oregon, in violation of a law Portland, Oregon, in violation of a law

passed in 1876. The Supreme Court found passed in 1876. The Supreme Court found that the law was unconstitutional and held that the law was unconstitutional and held that the power of removal was an essential that the power of removal was an essential

part of the executive power. part of the executive power.

Chief ExecutiveChief Executive

President must act President must act as:as: Head administratorHead administrator Manager of many Manager of many

departments, boards, departments, boards, bureaus, offices, and bureaus, offices, and other agencies that other agencies that make up the vast make up the vast executive branch of executive branch of the federal the federal government.government.

Does the President Does the President has the power to has the power to interpret the lawinterpret the law in in order to order to enforce the enforce the law?law?

The president may issue Executive The president may issue Executive Orders.Orders.

RulesRules RegulationsRegulations DirectivesDirectives

applying federal lawsapplying federal laws to govern day-to-day to govern day-to-day

operationsoperations

""Stroke of the pen. Law of the Land. Kinda cool." Stroke of the pen. Law of the Land. Kinda cool."

Paul Begala, former Clinton advisor, The New York Times, July 5, 1998Paul Begala, former Clinton advisor, The New York Times, July 5, 1998 Executive ordersExecutive orders

--legally binding--legally binding

--don’t require approval--don’t require approval

--orders can fulfill a --orders can fulfill a vague lawvague law

--order can depart from --order can depart from Congressional “intent”Congressional “intent”

Checks on EOs:Checks on EOs:

Supreme Court-not Supreme Court-not oftenoften

Congress—withhold Congress—withhold funds, pass new law funds, pass new law (can be vetoed)(can be vetoed)

PressPress

Future President (can Future President (can reverse EOs)reverse EOs)

Examples of EOsExamples of EOs

TR—claimed vast lands for the American TR—claimed vast lands for the American peoplepeople

FDR—interned Japanese AmericansFDR—interned Japanese AmericansTruman—desegregated armed servicesTruman—desegregated armed servicesEisenhower—send troops to enforce Eisenhower—send troops to enforce

integrationintegrationClinton—go to war in YugoslaviaClinton—go to war in YugoslaviaObama—”add language” to the Health Care Obama—”add language” to the Health Care

billbill

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.

Executive Order No. 9066The PresidentExecutive Order Authorizing the Secretary of War to Prescribe Military Areas

Notice the power of “ordinance power”

Can EOs exceed authority?Can EOs exceed authority?

The Supreme Court thought so: The Supreme Court thought so: Youngstown v. Sawyer (1952)—Truman Youngstown v. Sawyer (1952)—Truman as a law maker, rather than a law “clarifier” as a law maker, rather than a law “clarifier” or law “executor”or law “executor”

Most Presidents don’t: language of laws Most Presidents don’t: language of laws and acts are often vague, ambiguousand acts are often vague, ambiguous

Executive Orders: DirectivesExecutive Orders: Directives

Directives are EOs that have something to Directives are EOs that have something to do with national security.do with national security.

Which means: NSDs, and HSPDs!Which means: NSDs, and HSPDs!

Too arbitrary? Depends on your Too arbitrary? Depends on your perspectiveperspective

EO’s that make us smileEO’s that make us smile

The crisis in Little RockThe crisis in Little Rock

The Peace CorpsThe Peace Corps

Take Your Child to Take Your Child to Work DayWork Day

EO’s that cause EO’s that cause concernconcern

Internment campsInternment camps

Presidential archivesPresidential archives

Military CommissionsMilitary Commissions

Who’s Right?Who’s Right?

CriticismCriticism

Giorgio Agamben: Giorgio Agamben: “permanent state of “permanent state of exception”?exception”?

De facto dictatorship?De facto dictatorship?

SupportSupport

Clarify and carry out the Clarify and carry out the lawlaw

To exercise To exercise responsibilities in the responsibilities in the jobjob

Chief LegislatorChief Legislator

President relies on the power of President relies on the power of persuasion.persuasion.

How does the president interpret How does the president interpret the law?the law?

Think of a bill sent from Think of a bill sent from Congress as a house.Congress as a house.

It may be small and It may be small and elegently crafted.elegently crafted.

A MetaphorA Metaphor

It may be huge and It may be huge and hastily banged hastily banged together, with some together, with some architectural features architectural features that do not fit well that do not fit well together.together.

Other MetaphorsOther Metaphors

A veto is like a A veto is like a jackhammer or buzz-jackhammer or buzz-saw.saw.

It stops legislation It stops legislation from being enacted from being enacted and bill is sent “back and bill is sent “back to the drawing board.”to the drawing board.”

The Ultimate Weapon: The Ultimate Weapon: Veto Power Veto Power

President can President can vetoveto a a bill he doesn’t approvebill he doesn’t approve Bill sent back for Bill sent back for

revision to the revision to the house of Congress house of Congress from with is from with is originated.originated.

Congress can Congress can override the vetooverride the veto

Requires two-thirds Requires two-thirds vote of both the vote of both the House and Senate.House and Senate.

Pocket VetoPocket Veto When the president doesn’t When the president doesn’t

sign a bill sent to him sign a bill sent to him during the last 10 days during the last 10 days before Congress adjourns before Congress adjourns for the yearfor the year

Kills the billKills the bill Line-item vetoLine-item veto

Would allow president to Would allow president to veto only certain parts of a veto only certain parts of a bill instead of the entire bill instead of the entire law.law.

Declared unconstitutionalDeclared unconstitutional Requires a constitutional Requires a constitutional

amendmentamendment

The President may issue a Signing The President may issue a Signing Statement.Statement.

Indicates how the Indicates how the President will interpret President will interpret a lawa law

Roles and Power of the Roles and Power of the PresidentPresident

Constitutional Constitutional requirements of the requirements of the president called an president called an “awesome burden”.“awesome burden”.

Presidential Signing StatementPresidential Signing Statement

Document Document

Issued by the executive branch Issued by the executive branch

of the federal government of the federal government

When the president signs a piece of When the president signs a piece of legislationlegislation

sent from Congresssent from Congress

Types of Signing StatementsTypes of Signing Statements

Two general types of Two general types of signing statements:signing statements: Rhetorical or public relationsRhetorical or public relations

tooltool Ex: President Bush issued a Ex: President Bush issued a

statement in March 2005 during statement in March 2005 during the debate over the fate of Terry the debate over the fate of Terry Schiavo, a comatose woman Schiavo, a comatose woman whose husband and parents whose husband and parents disagreed over whether to end disagreed over whether to end medical life-support.medical life-support.

In this caseIn this case

President Bush released a signing President Bush released a signing statement that read:statement that read: ““In cases like this one, where there are In cases like this one, where there are

serious questions and substantial doubts, our serious questions and substantial doubts, our society, our laws, and our courts should have society, our laws, and our courts should have a presumption in favor of life… I appreciate a presumption in favor of life… I appreciate the bipartisan action by the Members of the bipartisan action by the Members of Congress to pass this bill. I will continue to Congress to pass this bill. I will continue to stand on the side of those defending life for all stand on the side of those defending life for all Americans including those with disabilities.”Americans including those with disabilities.”

To influence the courtsTo influence the courts

To influence the To influence the courtscourts, when and , when and if a case involving if a case involving the legislation the legislation ever came before ever came before a judge who had a judge who had to decide to decide between the between the views of the views of the president and president and Congress.Congress.

To guideTo guideTo guide To guide

executive executive branch branch administratorsadministrators when they are when they are implementing implementing a new law.a new law.

Presidential Signing StatementPresidential Signing Statement

Strategic Strategic tool tool in power struggle with Congressin power struggle with Congress over provisions of the bill they disagree over provisions of the bill they disagree

aboutabout

To challengeTo challenge

To challenge a To challenge a provision of the provision of the law as law as unconstitutional unconstitutional and see how it and see how it will be remediedwill be remedied..

To carry out a Presidential To carry out a Presidential power…power…

Ex: In 1978 President Ex: In 1978 President Jimmy Carter objected Jimmy Carter objected when Congress passed a when Congress passed a bill with an amendment bill with an amendment prohibiting the use of funds prohibiting the use of funds to carry out his amnesty to carry out his amnesty program for Vietnam War program for Vietnam War draft resisters. His signing draft resisters. His signing statement notes that this statement notes that this interfered with his interfered with his constitutional power to constitutional power to pardon and denied the pardon and denied the constitutional guarantee of constitutional guarantee of due process of law, so his due process of law, so his administration ignored that administration ignored that part of the bill and part of the bill and processed all the draft processed all the draft resisters’ applications.resisters’ applications.

Constitutional Basis for Signing Constitutional Basis for Signing StatementsStatements

PresidentPresident Years in OfficeYears in Office

Number of signing statements Number of signing statements raising constitutional raising constitutional

concerns*concerns*All, before All, before ReaganReagan

1787-19811787-1981 1616

Ronald ReaganRonald Reagan 1981-19891981-1989 71 71 (26% of total statements)(26% of total statements)

George H.W. George H.W. BushBush

1989-19931989-1993 146 146 (68% of total statements)(68% of total statements)

Bill ClintonBill Clinton 1993-20011993-2001 105 105 (27% of total statements)(27% of total statements)

George W. BushGeorge W. Bush 2001-20052001-2005 110 110 (86% of totals statements, containing (86% of totals statements, containing over 700 challenges to specific provisions over 700 challenges to specific provisions of laws)of laws)

*Source: Congressional Research Service Report for Congress, Sept. 2006

Judicial PowersJudicial Powers

Reprieve: postponement of the execution of a Reprieve: postponement of the execution of a sentencesentence

Pardon: legal forgiveness of a crimePardon: legal forgiveness of a crime Two powers are absolute, except in cases of Two powers are absolute, except in cases of

impeachment, where they may not be grantedimpeachment, where they may not be granted Considered powers of clemency, can only be used in Considered powers of clemency, can only be used in

cases involving federal offensescases involving federal offenses Can grant after trial, after or before they are chargedCan grant after trial, after or before they are charged

Ex. Ford pardoned Nixon before he was chargedEx. Ford pardoned Nixon before he was charged Must be accepted by the person it is grantedMust be accepted by the person it is granted Can be conditionalCan be conditional

Diplomatic and Military PowersDiplomatic and Military Powers

Power to make treatiesPower to make treaties Formal agreements between two+ statesFormal agreements between two+ states Senate must approve by 2/3 voteSenate must approve by 2/3 vote President ratifiesPresident ratifies Congress can repeal a treaty by passing a Congress can repeal a treaty by passing a

law, and a treaty can overturn an old lawlaw, and a treaty can overturn an old law Treaties cannot conflict with the ConstitutionTreaties cannot conflict with the Constitution

The Power of RecognitionThe Power of Recognition

To recognize a country is to acknowledge the To recognize a country is to acknowledge the legal existence of that country and its legal existence of that country and its government.government. Does not mean approval ex. ChinaDoes not mean approval ex. China Can be used as a weaponCan be used as a weapon

T. Roosevelt recognized Panama, ensuring success against T. Roosevelt recognized Panama, ensuring success against ColombiaColombia

Truman recognized IsraelTruman recognized Israel

May ask for the recall of a nation’s ambassador May ask for the recall of a nation’s ambassador (persona non grata)(persona non grata)

Commander in ChiefCommander in Chief

Article II, Section 2, Clause 1 makes the Article II, Section 2, Clause 1 makes the President commander in chief of nation’s President commander in chief of nation’s armed forcesarmed forces Powers are almost without limitPowers are almost without limit Designates authority to military subordinates, Designates authority to military subordinates,

but not required to do sobut not required to do so George Washington led troops in Whiskey RebellionGeorge Washington led troops in Whiskey Rebellion Abe Lincoln instructed generals in the fieldAbe Lincoln instructed generals in the field

Most critical decisions are made by PresidentMost critical decisions are made by President

Making WarMaking War

Can use armed forces without a declaration of Can use armed forces without a declaration of war by Congress (undeclared war)war by Congress (undeclared war) Ex. John Adams, Jefferson and Madison (Barbary Ex. John Adams, Jefferson and Madison (Barbary

coast pirates), Korea, Vietnamcoast pirates), Korea, Vietnam

Congress has not declared war since WWIICongress has not declared war since WWII Has enacted joint resolutions to authorize the Has enacted joint resolutions to authorize the

President to meet certain international crises with President to meet certain international crises with military forcemilitary force Ex. George W. Bush in the War in Iraq, George H.W. Ex. George W. Bush in the War in Iraq, George H.W.

Bush in the Persian Gulf War, Lyndon Johnson in Bush in the Persian Gulf War, Lyndon Johnson in VietnamVietnam

The War Powers ResolutionThe War Powers Resolution Passed by Congress in 1973Passed by Congress in 1973 Nixon vetoed the measure, but Congress Nixon vetoed the measure, but Congress

overrode the vetooverrode the veto Provisions:Provisions:

Within 48 hrs. of sending troops abroad, the Within 48 hrs. of sending troops abroad, the President must report to CongressPresident must report to Congress

Combat commitment must end within 60 days, Combat commitment must end within 60 days, unless Congress agrees to a longer period.unless Congress agrees to a longer period.

Congress may end the combat commitment at any Congress may end the combat commitment at any time, by passing a concurrent resolutiontime, by passing a concurrent resolution

The FootballThe Football The football carries the The football carries the

launch codeslaunch codes The football is carried by The football is carried by

a military aide with a military aide with “Yankee White” clearance“Yankee White” clearance

The “biscuit” identifies the The “biscuit” identifies the PresidentPresident

The order is confirmed by The order is confirmed by the Sec. of Def.the Sec. of Def.

3 footballs: 1 with the 3 footballs: 1 with the Prez, a spare at the Prez, a spare at the White House…and one White House…and one with the VEEP! Eeeek?with the VEEP! Eeeek?

Football Trivia!Football Trivia! Football contains the BLACK Football contains the BLACK

BOOK—has “retaliatory BOOK—has “retaliatory options” labeled “medium”, options” labeled “medium”, “rare”, “well-done”“rare”, “well-done”

Reagan kept the launch codes Reagan kept the launch codes in his walletin his wallet

43 had the football a few feet 43 had the football a few feet away when he met the Popeaway when he met the Pope

Carter left them in his suit Carter left them in his suit while it was being dry cleanedwhile it was being dry cleaned

Sometimes, the football is left Sometimes, the football is left behind, like at a 1991 tennis behind, like at a 1991 tennis match attended by 41match attended by 41

Russian football : chegetRussian football : cheget

FoundationsFoundations

Crazy thought: can we think of executive Crazy thought: can we think of executive powers as laws themselves? Is a powers as laws themselves? Is a Presidential order like a law? Or a CourtPresidential order like a law? Or a Court

Decision? Decision?

Answer: yes, since for the most part, Prez Answer: yes, since for the most part, Prez power has legal force!power has legal force!