Constitutional Analysis

What is the Presidency and why is it

there?
Read Article 2 of the US Constitution.
Identify the qualifications/requirements
for an individual to become President.
Under the US Constitution, a president must be;
• A natural-born US citizen
• At least 35 years old
• A US resident for at least 14 years
Enquiry Question: What constitutional powers
does the president have?
 Learning Objectives
• To understand the background of monarchical
tyranny
• To identify the constitutional powers of the
president
 Pause For Thought
Useful Items
• List of Presidents (including
party and dates)
• List of Vice Presidents
(including part and dates)
• Brief profiles of the
Modern Presidents
(Truman-GWB)
• In-depth profile of BHO
(1st and 2nd terms)
 How would the constitution
prevent executive tyranny?
• The delegates to the Constitutional Convention of 1787 gave
surprisingly little attention to the executive branch of government.
• In contrast to the protracted debates over the powers of Congress, the
powers of the president were defined fairly quickly and without much
discussion.
• This might in part be due to the reluctance of delegates to offend
George Washington, the presiding officer of the Convention, and the
man all delegates assumed would be the nation's first president.
• As a result, one can study Madison's Notes of Debates without ever
reaching a clear understanding of the scope of the authority the
framers intended to give the executive.
• Justice Robert Jackson, commenting on the unclear Convention record,
wrote that it was "almost as enigmatic as the dreams Joseph was
called upon to interpret for the Pharaoh."
 How would the constitution
prevent executive tyranny?
• Despite the lack of attention given to the executive, historian Jack
Rakove called the creation of the presidency the framers' "most
creative act."
• In Article II of the new Constitution, the framers offered the world
something entirely new: a chief executive whose power came from the
people rather than heredity or force.
• The Constitution, however, provides little hint that the president would
become as power as he has in modern times. The framers obviously
assumed that the legislative branch would be much more influential.
• Madison wrote that it would "rarely if ever happen that the excecutive
constituted as ours is proposed to be would have firmness enough to
resist the legislature."
• Among the delegates, only Alexander Hamilton strongly advocated an
executive with the power to match the monarchs of Europe.
 How would the constitution
prevent executive tyranny?

• Over the nation's long history, with only short

interruptions, power has flowed increasingly to
the Executive Branch.
• The reasons for this are numerous, but include
the successful exercise of power by ambitious
presidents from Lincoln to the two
Roosevelts, the growth of the administrative
state in the 20th century, and the realization that
Congress is ill-suited compared to the President
to make timely responses to national security
threats.
“My choice early in life was either to be a piano-player in a
whorehouse or a politician. And to tell the truth, there’s
hardly any difference.” - President Harry Truman
 An American Monarch?
• Ensuring
However,that prominent
the people of the
USA would never suffer
American political scientist
oppression at the hands of a
Richard Neustadt
powerful, unrestrained(who
leader
was the central in
specialises aim of the
the US
Founding Fathers when they
presidency and has been
produced the Constitution.
adviser to several
• Yet in modern times, the
presidents)
president ofhas argued
the USA that
has been
routinely described
presidents areasso
the most
powerful person in the world.
constrained by the system of
• This would suggest that the
checks
primary and balances
objective of thethat
US
they have onlysystem
constitutional ‘the power
has notto
been met.
persuade’.
 Pause For Thought
Professor Richard Neustadt
American political scientist specializing in the United States
presidency. He also served as advisor to several presidents.

“The essence of a President’s

persuasive task, with
congressmen and everybody else,
is to induce them to believe that
what he wants of them is what
their own appraisal of their own
responsibilities requires them to
do in their interest, not this.”
- Richard Neustadt (1990)
 Constitutional Analysis

Presidential Power
Read Article 2 of the Constitution.
What roles and powers are bestowed on President?
Formal Powers Informal Resources
• Veto • Staff in the executive
• Executive orders branch
• Nominations • Party ties
• Recommendations • Mass media
• Commander-in-Chief • International contracts
• Head of State and • The ‘bully pulpit’
Head of Government
 Executive Arrangements in 15 democracies
Nation Head of Government Head of State
Brazil President President
Canada Prime Minister Governor-General
France Prime Minister and President President
Germany Chancellor President
India Prime Minister President
Ireland Prime Minister President
Israel Prime Minister President
Italy Prime Minister President
Japan Prime Minister Monarch
Portugal Prime Minister and President President
Russia President President
Spain Prime Minister Monarch
Sweden Prime Minister Monarch
UK Prime Minister Monarch
USA President President
Roles of the President

These roles
are not
always
clearly
stated in the
Constitution
…so how
have they
evolved?
 Roles of the President
Head of State
The Constitution confers specific
powers on the president;
• He is commander-in-chief of the
armed services (but he cannot
declare war)
• He negotiates and signs treaties
with other countries (although
they need to be ratified by the
Senate)
• He is in charge of diplomatic
relations with other countries
• He has the power to issue
pardons to anyone convicted of a
crime
These duties are carried out in most
countries by the Head of State, so
the president carries this title,
although this is not specified in the
Constitution.
Head of Government
The Constitution also confers the
following two powers on the
president;
• He is responsible for appointing
people to head government
departments, subject to
confirmation by the Senate.
• He can call Congress back into
session during a break (recess) at
times of national emergency.
These duties are carried out in most
countries by the head of the
government, so the president
carries this title, although again this
is no specified in the Constitution.
 Roles of the President
• In addition, as specified in a clause in the
Constitution, the president shall ‘from time
to time give to Congress information on the
State of the Union and recommend to their
Consideration such Measures as he shall
judge necessary and expedient’.
• As the State of the Union Address is
delivered annually at the end of January, the
president takes a leading role in shaping
national policy for the year.
• The president also has the power to veto
bills that have been passed by Congress
(found in Article 1, Section 7).
• Otherwise, the Constitution gives the
president the broad responsibility of
ensuring that the laws of the USA are
‘faithfully executed’.
 Roles of the President
From these constitutional
origins, the following
presidential roles have
developed;
How are
these roles
carried out?
How much
power do
they really
confer on
the
president?
 Learning Objectives
• To understand the background of monarchical
tyranny
• To identify the constitutional powers of the
president
 How much political
muscle does the
president have?
YOUR TASK:
• Watch the video clip.
• This video looks at the expressed powers of the President
of the United States - that is the ones you can find in the
Constitution.
• From appointing judges and granting pardons, to vetoing
laws and acting as the nation’s chief diplomat on foreign
policy, the Commander in Chief is a pretty powerful
person, but actually not as powerful as you might think.
• The Constitution also limits presidential powers to
maintain balance among the three branches of
government.
 The Hunt for Examples
YOUR TASK: 1. Be commander in chief of the Army and Navy when
called into service.
• Read the examples of 2. Require the opinion of the principal officer in each
these powers from executive department.
Barack Obama’s 3. Have power to grand reprieves and pardons.
4. Make treaties.
presidency. 5. Nominate and appoint ambassadors, judges of the
• You have 15 minutes in Supreme Court and all other officers of the United
States.
which to find examples 6. Fill up all vacancies during the recess of the Senate.
of as many of these 7. Give to Congress information of the state of the
constitutional powers as union.
8. Recommend to their consideration such measures
possible for Trump’s as he shall judge necessary and expedient.
presidency to date. 9. On extraordinary occasions convene both Houses,
or either of them.
• *Beware that Trump may 10. Receive ambassadors and other public ministers.
not have exercised every 11. Take care that the laws be faithfully executed.
constitutional power! 12. Commission all the officers of the United States.
What can the president do?
“If the president
does it, that
means it’s not
illegal.”
- Richard Nixon
 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
 Pause For Thought
Executive Orders
• A directive issued to officers
of the executive branch,
requiring them to take or
stop taking an action, alter
policy, change management
practices, or accept a
delegation of authority.
• Informal in history
• Process today
• Published in Federal Register,
numbered
• Legal Authority
 Pause For Thought
Presidential Memoranda
• Pronounceme
nt directed to
executive
branch
officials
• No publication
in Federal
Register
• Below the
radar of MCs
and media
 Pause For Thought
Presidential Proclamations
• States a
condition,
declares law
and requires
obedience, or
recognizes an
event. (Also
pardons)
• Binding on the
public.
• Published in
the Federal
Register
 Pause For Thought
National Security Directives
• Formal declaration to an
agency or department head of
a presidential national
security decision, requiring
follow-up.
• Designed at the National
Security Council
• Not published.
• Mostly classified.
• Problems with small group
dynamics, Congress’ exclusion
 Pause For Thought
Impoundment
• The president
refuses to
spend funds
appropriated
by Congress
• Congress has
restricted this
practice (1974,
1987)
• He can only
defer spending
if:
• A “special
contingency”
• To achieve
savings through
more efficient
operations
• He can only
propose to
permanently
rescind funds,
but Congress
must approve
within 45 days
 Pause For Thought
Signing Statements
• Traditionally
innocuous
• Since 1980s,
provide the
president’s
interpretation
of a law,
announce
Constitutional
limits on
implementatio
n of it, or
indicate
directions
about how to
administer it.
• Since 1986,
part of official
legislative
history
• Used as de
facto line item
veto since
Reagan
Executive Power Obama Example Trump Example

Executive Orders 13492 (Guantanamo Bay)

Presidential War Powers 15.12.11

Memoranda
Presidential Wright Brothers Day 15.12.11
Proclamations
National Security NSPD-9: Combating Terrorism
Directives 25.10.01
Impoundment The Impoundment Control Act of 1974 was passed
as Congress felt that President Nixon was abusing
his authority to impound the funding of programs
he opposed. The Act effectively removed the
impoundment power of the president and required
him to obtain Congressional approval if he wants to
rescind specific government spending. President
Nixon signed the Act with little protest because the
administration was then embroiled in
the Watergate scandal and unwilling to provoke
Congress.

Signing statements Obama Statement on Signing

American Recovery and
Reinvestment Act 2009
 Pause For Thought
Executive Powers
Why use executive powers?
• Quick in an emergency situation
• Pay debts to important groups without
committing many resources
• Don’t attract much attention
• Signing statements prevent vetoes of
complex/end of session legislation

Why not to use executive powers?

• Contribute to accumulation of power in
executive hands
• Make it more difficult for successors to
govern
• Undermine existing administrative law
procedures
• Easy for next administration to undo
• Closed policymaking process = bad policy?
 Spotlight:
Presidential Veto
While the word "veto" does not appear in the Constitution the
power of the President to refuse to sign legislation is clearly
outlined in the Constitution:
"Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States: If he approve he shall sign it, but if
not he shall return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections at large on
their Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall agree to pass the
Bill, it shall be sent, together with the Objections, to the other
House, by which it shall likewise be reconsidered, and if approved
by two thirds of that House, it shall become a Law."
---U.S. Constitution, Article I, Section 7, clause 2
 Spotlight:
Presidential Veto
• The Framers of the Constitution gave the President the
power to veto acts of Congress to prevent the legislative
branch from becoming too powerful.
• This is an illustration of the separation of powers integral to
the U.S. Constitution.
• By separating the powers of government into three
branches and creating a system of "checks and balances"
between them, the Framers hoped to prevent the misuse or
abuse of power.
• The veto allows the President to "check" the legislature by
reviewing acts passed by Congress and blocking measures
he finds unconstitutional, unjust, or unwise.
• Congress's power to override the President's veto forms a
"balance" between the branches on the lawmaking power.
 Spotlight:
Presidential Veto
• The veto power does not give the President the power to amend
or alter the content of legislation—the President only has the
ability to accept or reject an entire act passed by Congress.
• The President, however, can influence and shape legislation by a
threat of a veto. By threatening a veto, the President can
persuade legislators to alter the content of the bill to be more
acceptable to the President.
• Congress can override a veto by passing the act by a two-thirds
vote in both the House and the Senate. (Usually an act is passed
with a simple majority.)
• This check prevents the President from blocking an act when
significant support for it exists. Two-thirds is a high standard to
meet— broad support for an act is needed to reach this
threshold.
 Spotlight:
Presidential Veto
• The President’s veto power is significant because Congress rarely
overrides vetoes—out of 1,484 regular vetoes since 1789, only
7.1%, or 106, have been overridden.
• If the President does not sign the bill within ten days it becomes
law unless Congress has adjourned.
• If Congress adjourns before the President has signed the bill and
the President does not want the bill to pass the President may
simply fail to sign the bill.
• When this happens the bill does not become law (it is essentially
vetoed). T
• his is referred to as a “pocket veto.” Since Congress cannot vote
while in adjournment a pocket veto cannot be overridden.
• 42% of all Presidential vetoes from 1789-2004 have been pocket
vetoes.
 Spotlight:
Presidential Veto
YOUR TASK:
• Read the article “Presidential Vetoes” to consolidate
your understanding of the types of vetoes and how
these are used by presidents.
• Analyse a facsimile of a 1973 President Richard Nixon
veto and the vetoed bill (S. 518) to gain a greater
understanding of the veto process.
• Identify language within the bill or message as well as
other evidence to identify how it satisfies the
constitutional requirements of the legislative and
veto process.
 Did this legislation become a public law?
How does the veto and override process enable the executive and
legislative branches to achieve the constitutional principle of “checks and
balances” between branches of government?
What did the Founders hope to accomplish by including these powers?
Could that goal have been reached in a more effective manner? If so,
how?
How significant is the president’s
power of veto?
 How significant is the president’s
power of veto?
• the veto was used extensively by earlier presidents, e.g. FDR vetoed a
total of 635 bills in total, as means of asserting executive power the veto
is now typically used less often;
• frequent use may suggest the president has lost control of the agenda, if
Congress is willing to pass legislation in defiance of his known wishes,
especially if it is controlled by his own party;
• the threat of a veto may be more potent in the later stages of a
presidency or against a Congress controlled by the opposition party, the
veto may be the only way the president has of exerting influence because
he has no re-election to consider, a second term president can be
unrestrained in his use of the veto to some extent, the veto may have
been replaced by the extensive use of ‘signing statements’, which have the
effect of a veto but none of the attendant political costs
 Learning Objectives
• To understand the background of monarchical
tyranny
• To identify the constitutional powers of the
president
There have been 45
Presidents of the
United States.

How many can you

name?

• 0-9 = Poor
• 10-18 = OK
• 19-27 = Good
• 28-36 = Excellent
• 37+ = Genius!
 Homework
Application Task:
How significant is the President’s power of veto? (15)
Flipped Learning Preparation Task:
The Presidency in a changing America (McKay p234-242)
Stretch & Challenge Task
Several attempts have been made to give the President "line-item
veto" power, but all have failed (Congress passed a law in 1996
granting line-item veto power to the President, but the Supreme
Court declared it unconstitutional in Clinton v. City of New
York, 524 U.S. 417 (1998). Research this power, especially why it
has been proposed, the arguments for and against the power, and
the results of the court decision. How would this power, if used,
affect the legislative process as a whole?