Constitutional Analysis

How much power does the president

have?
Read Article 2 of the US Constitution.
Go back to your notes on the formal powers
of the president. What do you notice?
Believe it or not, this is all that Article 2 says about the powers of
the President. The rest is mostly about his appointment and the
possibility of getting rid of him if necessary. More important,
most of the powers in italics are the only ones that are not in one
way or another constrained by other branches of government,
and there aren’t many of those. Don’t underestimate the
importance of this point.
 The ratification of the US Constitution in 1787. The balance of the three executive branches
within the document bears a precision that is not at first easy to detect in the apparent
vagueness of much of the wording. It is no accident that the Founding Fathers chose to begin
not with the executive, but with the legislature, fearing the emergence of a central tyranny.
Enquiry Question: How is the power of the
President limited?
 Learning Objectives
• To evaluate the extent to which the president is restricted by
checks and balances
• To evaluate the extent to which the president is able to
circumvent checks on his power
• To evaluate the extent to which the president is dependent on
the ‘power to persuade’
Presidential Role
HEAD OF STATE
Appointment of ambassadors
Emergency powers
CHIEF EXECUTIVE
Policymaking
Control of agencies like CIA
Appointments
Control of bureaucracy
Control of cabinet
Budget
COMMANDER-IN-CHIEF
Control of the armed forces
CHIEF DIPLOMAT
CHIEF LEGISLATOR
PARTY CHIEF
(not in Constitution)
Constraints on the President
• Only with the advice and consent of Senate
• Congress has powers of general scrutiny and public
investigation
• Congress has power of impeachment and trial
• Limited by the public opinion and two four-year terms
• Congress holds the purse strings
• Scrutiny of agencies by congressional committees
• With advice and consent of Senate
• Spending and efficiency scrutinised by Congress
• Bureaucracy is too large to control effectively
• Choice limited by considerations like public opinion and
Senate approval
• Limited by congressional budget, and congressional approval
• Congress declares war
• Congressional control through laws allowed by Constitution
• Senate has to approve treaties
• Congress holds the purse strings
• Separation of Powers – hard to control a bill
• Congress can override a veto
• Parties too decentralised to control and separation of
powers prevents party patronage in Congress
 Pause For Thought
Checks on Presidential Power
Congress
Supreme
Court
Public
Opinion
Media
Pressure
Groups
Federal
Bureaucracy
Other factors
 Checks by Congress on Presidential
Powers
Power of the President
Propose legislation
Submit the annual budget
Veto legislation
Act as chief executive
Nominate executive officials
Nominate federal judges
Negotiate treaties
Commander-in-chief of the
armed forces
Checks by Congress
Amend/block legislation
Amend budget
Override veto
Investigation/impeachment/re
moval
Confirmation (Senate)
Confirmation (Senate)
Ratification (Senate)
Declare war/power of the
purse
 Checks by the Supreme Court on
Presidential Powers
• The Supreme Court can declare
actions of the executive to be
unconstitutional.
E.g.:
– Rasul v Bush (2004)
– Hamdan v Rumsfeld (2006)
– Supreme Court strikes down
Obama recess appointments
2014
(http://www.politico.com/story/
2014/06/supreme-court-recess-
appointments-108347.html)
 Checks by Public Opinion on
Presidential Powers
• Public opinion is also a check
on presidential power.
• Why?

Further Reading:
The President and
the Public [GC]
 Checks by the Media on Presidential
Powers
• The role of the media in
checking presidential power
should not be
underestimated.
What about the role of social
• Why? media?
 Spotlight on…
The Role of the Media
The press
wields
considerable
influence
over public
opinion by
choosing
what stories
to cover,
reporting the
facts, and
expressing
opinions.
 The media reported
Woodward and Bernstein President Ford’s gaffs
expose the Watergate (ski accidents, falling
cover up which ultimately down steps of Air
led to Nixon’s resignation. Force I) which
contributed to Ford’s
The press widely reported image as a bungler.
Bill Clinton’s The media reported
“indiscretions” with GWB’s gaffs (mis-
Monica Lewinsky and spoken words, funny
attempt to “spin” the pictures) which
scandal without admitting contributed to his
responsibility. image as ‘dumb’.
 Checks by Pressure Groups on
Presidential Powers
• Pressure groups can mobilise public opinion
either for the president himself or his policies.
How can
pressure
groups also
affect the
success of
presidential
initiatives?
 Checks by Federal Bureaucracy on
Presidential Powers
• Getting the federal bureaucracy to ‘do something’
can be a big challenge.
• Why?
 Checks by Other Factors on
Presidential Powers
• Federal System
• Professional Reputation
• Unity of the party
• Crises
• Constitutional Amendments

Further Reading:
Presidential
Greatness [GC]
 Checks on Presidential Power
“Given the plethora of potential obstacles that stand in their
way, it sometimes seems almost miraculous that presidents
accomplish anything at all.”
- David Mervin (1993)

• The test for any president is both to work within these

limitations and to ensure that they do not shackle him.
• He needs to persuade Congress, to woo public opinion,
to use the media to his advantage, to control the
federal bureaucracy and to unite his party even as he
works to divide the opposition.
• The electorate does not want to hear that the
president could not deliver his promises because of the
limits upon his office.
 Learning Objectives
• To evaluate the extent to which the president is restricted by
checks and balances
• To evaluate the extent to which the president is able to
circumvent checks on his power
• To evaluate the extent to which the president is dependent on
the ‘power to persuade’
 Getting round the
Constitution?
• The formal powers allocated in the Constitution
are limited in some way.
• The modern president will have developed a
range of techniques and powers that seek to
overcome some of the restraints found in the
Constitution.
• The power of the president has been argued to
have grown in recent times, despite these
constraints.
 Pause For
Thought
Executive Power
Executive power is also
exercised through a range
of mechanisms at the
disposal of the President.

Executive Orders
Presidential
Memoranda
Presidential
Proclamations
National Security
Directives
Impoundment
Signing statements
Where is the president most powerful?

Domestic Policy Foreign Policy

 Learning Objectives
• To evaluate the extent to which the president is restricted by
checks and balances
• To evaluate the extent to which the president is able to
circumvent checks on his power
• To evaluate the extent to which the president is dependent on
the ‘power to persuade’
 Theories of Presidential
Power

YOUR TASK:
• Read each theory.
• Decide which theory you believe is the most
accurate description of modern presidential
Neustadt’s
power. Kernell’s Theory Skowronek’s
“Power to
• Clearly explain andofjustify
“Goingyour decisionTheory
with of
Persuade”
examples from the Public”
Obama “Political Time”
presidency.
Theory
• What theory of presidential power most accurately
describes the Trump presidency?
Thinking Points
Potential Essay Questions
• Assess the difficulties that presidents
face in their dealings with Congress.
• How accurate is it to describe the
president as ‘bargainer-in-chief’?
• Examine the claim that ‘the president’s
power is the power to persuade’.
• Who controls foreign policy; the
president or Congress?
• Assess the accuracy of Pfiffner’s claim
that ‘the presidency is not a powerful
office’.
The President has grown too powerful. How far do
you agree with this statement?
45 marks = 45 minutes
[ZigZag Guide p41]
 Learning Objectives
• To evaluate the extent to which the president is restricted by
checks and balances
• To evaluate the extent to which the president is able to
circumvent checks on his power
• To evaluate the extent to which the president is dependent on
the ‘power to persuade’
 Homework
Application Task:
• To what extent is ‘the power to persuade’ the president’s
most important power? (45)
• ‘Weak at home, strong abroad.’ Discuss this view of the
power of the president. (45)
Flipped Learning Preparation Task:
• Presidential Persuasion (Bennett p268-275)
• Role and Power of the President in foreign policy (Pearson
p380-383)
Stretch & Challenge Task:
• Theories of Presidential Power (Bennett p 277-280)
• Limits on presidential power (Bennett p281-283)
 Neustadt – Power to Persuade
 Argues that presidents cannot lead directly.
In other words, just because a president
says he wants something done does not
mean it will be so.
 Instead presidential power is a function of
his or her ability to persuade relevant
Washington actors that it is in their interest
to cooperate.
 Assumes a small Washington community
with identifiable leaders who the president
can negotiate with directly. These leaders
(whether legislative, bureaucratic, or from
an interested group) can then marshal their
followers in support of the president. This
arrangement is known as “institutionalized
pluralism”.
 The system of “institutionalized pluralism”
hinges on a couple of norms:
 Comity/Honor: Actors in the policy-
making process are expected to keep
their promises, act amiably, and
general try to work out compromises.
No one, including the media, is out to
get anyone else. It is understood that
everyone is working towards a
common good, even if there are
disagreements.
 Seniority: More senior members of
Congress and of the bureaucracy are
expected to be deferred to. These
institutional leaders can marshal the
support of others.
 Powerful, or successful, presidents are
those that can bargain effectively with the
relevant actors. FDR is portrayed as the
most successful president in the world of
institutionalized pluralism.
Kernell – Going Public
 Kernell’s theory is a response to
Neustadt’s theory. Kernell argues that the
Washington community has changed since
the time Neustadt wrote, and as a result
changes in presidential strategies were
necessary.
 Kernell argues specifically that the
Washington community has become more
individualistic, less hierarchical, less
amiable, and harder to win the support of.
Rather than being able to bargain with just
a few members of Congress, a few
relevant bureaucrats, and a few relevant
interest group leaders, presidents now
must interact with all 535 members of
Congress, a vast bureaucracy, and an
innumerable number of interested groups
and lobbyists. Kernell labels this
arrangement as “individualized pluralism”.
 As a consequence of this new
arrangement, Kernell argues presidents
cannot effectively bargain within the
Washington community. Instead, it is in
their interest to “go public” or take their
case directly to the people. The logic is
that if presidents can win over public
support they will pressure other actors,
particularly members of Congress, to
support their initiatives.
 Of course, Kernell does not believe that
“going public” will always work. He
presents numerous examples of failed
attempts. Power, or successful, presidents
are those who can effectively
communicate their message and sway
public opinion. Ronald Reagan is seen as
the archetypical powerful president under
this theory.
Skowronek – Political Time
 Skowronek’s theory of presidential power
differs dramatically from Neustadt’s and
Kernell’s. Rather than looking to presidential
activity for indicators of presidential power or
success, Skowronek looks to the political
environment a president faces.
 Skowronek envisions American history as
cycles of political time. Each cycle is marked
by the rise and fall of political regimes. A
regime, in this sense, is a party or faction that
rises to power in what Skowronek calls
“reconstructive elections”. In these elections,
a faction or party soundly defeats the
opposing party with a mandate to make
dramatic and sweeping changes to public
policy. Some reconstructive elections were
the elections of 1800, 1828, 1860, 1932, and
to some degree 1980.
 Presidents elected as reconstructive
presidents have the most leeway to take
dramatic action and have the best
opportunity to be powerful and successful.
Subsequent presidents will have a harder and
harder time finding success because either
the platform the regime was elected to
implement will slowly be completed, or the
regime fall out of favor with the public.
Eventually, the regime will fall by being
soundly defeated by a new regime.
Presidents at the end of a regime’s time will
have the most difficulty finding success.
 To Skowrownek, presidents do not have
complete control over their destiny. Their
ability to be powerful is, to a large degree, a
consequence of what has happened before
their time and the political environment they
face in office. Jefferson is portrayed as the
most powerful president by this theory.
Other powerful presidents were Jackson,
Lincoln, FDR, and to some degree, Reagan.