Congress and The Executive “Power V. Power”

XI. Original Intent

A. Framers’ saw a state of friction between the two branches because each had expressed powers that would bring them into potential disagreement with each other.

B. Separation of powers and checks on those powers were instituted to allow independent operations in their delegated areas and cooperation in others they shared.

C. Congressional Controls on the Executive

Most Executive branch powers or duties are subject to Congress’ approval or oversight such as: - Budget process - Running the government - Treaty ratification - War-making - Appointment confirmation - Veto power (fairly solid as overrides require congressional supermajorities often hard to get.

XII. PRESIDENTIAL TECHNIQUES TO ACHIEVE HIS AGENDA

• Build coalitions: - Seek bipartisan solutions - Convert opponents to your side

and politically defeat those who continue to oppose your policies.

• Use the “bully pulpit”, special interests and the media to mold public opinion against Congress via:

- Press conferences; targeted issue speeches

- State of the Union Address - Saturday radio addresses - YouTube messages - Meet the people events• Executive orders: do it his own way

XIII. THE IMPERIAL PRESIDENCY

A. May occur as a result of powers inherent in the roles of Chief Executive, Commander-in-Chief, and foreign policy

initiator, whereby the President may decide to act unilaterally without congressional support by using his constitutional

powers for political reasons. Executive order: - A rule issued by the President

only to Executive branch organizations ordering a policy or action to be followed or ended on his authority. These orders have the force of law, but are not binding on any future presidents.

Executive Order Examples- Emancipation Proclamation

(1863) Lincoln ordered slaves freed in areas of rebellion

- E.O. 9066 (1942) FDR ordered the internment of Japanese-Americans during WW2

- E.O. 12033 (1979) Carter banned U.S. intelligence agencies from conducting assassinations

- E.O. 13543 (2010) Obama placed a moratorium on new offshore oil drilling

Imperial Presidency (cont’d)

Executive privilegeExecutive privilege• The right of the president to

keep essential communications among him, his advisors and staff, private.

• In U.S. v. Nixon (1973) the Court ruled that there is no presidential right to “absolute, unqualified immunity” in his communi-cations that may be questionable as to subject, or which may serve as evidence of criminality.

IMPERIAL PRESIDENCY (CONT)IMPERIAL PRESIDENCY (CONT)

Presidential findingPresidential finding In extraordinary situations, In extraordinary situations,

presidents may come to a presidents may come to a conclusion that they should conclusion that they should sign an authorization to sign an authorization to violate a law so that a violate a law so that a greater good may be greater good may be attained outside that law. attained outside that law.

- These “findings” may not - These “findings” may not legally hold up in the end.legally hold up in the end.

Example:Example: IRAN-IRAN-CONTRA SCANDAL CONTRA SCANDAL (1986)(1986)

Imperial Presidency (cont’d)Imperial Presidency (cont’d)

D. D. Signing statementsSigning statements The President signs a bill The President signs a bill into law, but states in into law, but states in writing that he believes writing that he believes part of the law to be part of the law to be unconstitutional and he unconstitutional and he intends to ignore it, intends to ignore it, implement it differently, or implement it differently, or interpret it in ways he interpret it in ways he thinks are constitutional. thinks are constitutional.

XIV. Budgetary Imperialism

A. Impoundment - President refuses to spend money (for any reason) that was legally appropriated by Congress for things in the budget. Impoundment and Control Act (1974)–Set limits on the president’s use of impoundment authority without prior Congressional approval due to Nixon’s abuse of it.

– Created standing Budget Committees in both houses and the independent Congressional Budget Office (CBO) to counter the president’s OMB.

Budget FightsBudget Fights• The The President’s budget President’s budget is a major source of is a major source of contention. It is reflective contention. It is reflective of each branch’s agenda of each branch’s agenda to cut, tax or spend. to cut, tax or spend. Unified gov’t is no Unified gov’t is no guarantee of a smooth guarantee of a smooth budget process. budget process.

•Sequestration: Sequestration:

Failure to pass an Failure to pass an annual budget may annual budget may require passage of a require passage of a continuing continuing resolutionresolution to keep to keep government funded, government funded, or theor the president president may order a may order a government government shutdown.shutdown.

B. Federal Spending Mandatory spending Expenses required by law. Currently represents 50% of the annual budget. Both branches vow to protect/cut these expenditures (“sacred cows”) thus creating budget impasses. Examples:- Entitlements (e.g. Social Security, Medicare, Medicaid, veterans pensions) - Interest on national debt- Welfare programs (e.g. food stamps, unemployment insurance)- Student Loans

Spending Types (cont’d)Discretionary spending- What is left over for all other gov’t needs and is the focus of Executive v. Legislative branch budget decisions and compromise Examples: - Defense - Homeland Security - Tax credits - National parks - Transportation infrastructure - Foreign aid - Disaster relief- Education - Technology- Energy development - Grants - Gov’t operations and salaries

XV. WAR POWERS

A. Only the President is the Commander-in-Chief and foreign policy initiator, NOT Congress.

B. Constitution subordinates the military to carry out decisions of civilian leaders.– The military implements what the President and his security advisors decide is in the nation’s strategic interests.

Imperial Commander-in-Chief C. Role of Commander-in-Chief has seen presidential expansion of war-making power outside of legislative checks by: - Designing defense strategy without input from Congress (Example: Obama’s 2012 plan to reduce U.S. nuclear weapon inventory by 80%) - Using military force without Congressional declaration of war, or not consulting first with them. (Example: 2011 US intervention in Libyan civil war) - Demanding legislation to expand emergency powers to protect nation. (Example: Bush’s 2002 Patriot Act)

Using Military ForceD. Last declared war was WW2.Last declared war was WW2. Since then, presidents have used the military nearly 250 times since WWII without a Congressional declaration of war or its foreknowledge. - Iranian hostage rescue (Carter) - Grenada invasion (Reagan) - Persian Gulf War (Bush Sr.) - Somalia intervention (Clinton) - Invasion of Iraq (Bush Jr.) - Attack on Libya (Obama)

E. WAR POWERS ACT•Congress’ reaction to Nixon’s expansion of the Vietnam War into Cambodia without their consent or knowledge.

•Provisions: Presidents can send up to 10,000 troops into a hostile situation for a period of 60 days and have another 30 days to return them (90 day total) without notifying Congress.

War Powers Act

• To date, no president of either party has acknowledged the law’s constitutionality.

- None want to be constrained by it. - None has challenged it in court.

• Congress has never enforced it, although it has often threatened to.

• Confiscate private property

• Set wage & price controls• Ration strategic materials• Control transportation &

communications• Mediate with labor• Declare martial law &

suspend habeas corpus

XVI. Presidential Emergency Powers

Korematsu v. United States

• FDR made Hawaii a military zone and the U.S. West Coast controlled areas and established martial law.

• He ordered all persons of Japanese ancestry to be rounded up and placed into internment camps during WW2.

• Did he do the same to citizens of German or Italian descent?

• What was the court’s decision in this case?

WHAT PRESIDENTIAL CRITTERS AWAIT US IN THE FUTURE?

END OF UNIT 9 (Part 2) THE PRESIDENCY