The Boundaries of Presidential The Boundaries of Presidential PowerPower

I. Ceremonial Head of StateI. Ceremonial Head of State

The Roosevelt Taft The Roosevelt Taft DebateDebate

““StewardSteward”” v. v. ““MagistrateMagistrate””

II. President as Chief ExecutiveII. President as Chief Executive

““He shall take Care that the Laws be He shall take Care that the Laws be faithfully executed.faithfully executed.””

““executive power shall be vested in a executive power shall be vested in a PresidentPresident””

Are there limits to the power to Are there limits to the power to ““take take carecare”” and does and does ““vestedvested”” imply wide imply wide discretion? discretion?

Abraham Lincoln and Presidential Abraham Lincoln and Presidential prerogative prerogative

““I felt that measures I felt that measures otherwise otherwise unconstitutional unconstitutional might become lawful might become lawful by becoming by becoming indispensable to the indispensable to the preservation of the preservation of the ConstitutionConstitution””

Lincoln and TaneyLincoln and TaneyEx Parte MilliganEx Parte Milligan

Issue a: Suspension of Issue a: Suspension of habeas corpushabeas corpus

George W. Bush and JoseGeorge W. Bush and Jose’’ Padilla Padilla

From From ““enemy enemy combatantcombatant”” to to ““civiliancivilian””

Supreme Court Cases regarding Supreme Court Cases regarding Iraq War prisoners at GuantánamoIraq War prisoners at Guantánamo

1. Hamdi v. Rumsfeld (2004)—U.S. 1. Hamdi v. Rumsfeld (2004)—U.S. Citizens must get a Citizens must get a ““meaningful meaningful opportunityopportunity”” to challenge their to challenge their detention. [Hamdi convicted of detention. [Hamdi convicted of terrorism August 2008]terrorism August 2008]

2. Rasul v. Bush (2004)2. Rasul v. Bush (2004) Detainees at Guantánamo were Detainees at Guantánamo were

entitled to due process in American entitled to due process in American courts. courts.

3. Hamdan v. Rumsfeld (2006)--3. Hamdan v. Rumsfeld (2006)--military commissions to try military commissions to try detainees, created without asking detainees, created without asking Congress to agree, overstepped his Congress to agree, overstepped his authority under the Constitutionauthority under the Constitution’’s s separation of powers.separation of powers.

Boumediene v. Bush (2008)--ruled Boumediene v. Bush (2008)--ruled that prisoners at Guantanamo Bay that prisoners at Guantanamo Bay have a right to challenge their have a right to challenge their detentions in the federal courts detentions in the federal courts

Issue b: Truman and Steel SeizureIssue b: Truman and Steel SeizureYoungstown Sheet and Tube v. SawyerYoungstown Sheet and Tube v. Sawyer

On Executive Powers:On Executive Powers:

““Their use can make Their use can make a Lincoln or Jefferson a Lincoln or Jefferson administration; their administration; their nonuse can make a nonuse can make a Buchanan or Grant Buchanan or Grant

administration.administration.””

Issue c: Lawmaking through Issue c: Lawmaking through Executive OrdersExecutive Orders

Truman and the desegregation of the Truman and the desegregation of the military (E.O. 9981)military (E.O. 9981)

It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible . . .

Lyndon Johnson and E.O. 11246Lyndon Johnson and E.O. 11246

““all Government contracting all Government contracting agencies shall include in every agencies shall include in every Government contract hereafter Government contract hereafter entered into the following entered into the following provisions:provisions:”” ““The contractor will The contractor will take affirmative action to ensure take affirmative action to ensure that applicants are employed, and that applicants are employed, and that employees are treated during that employees are treated during employment, without regard to employment, without regard to their race, color, religion, sex or their race, color, religion, sex or national originnational origin””

Obama Executive OrdersObama Executive Orders

Stem cell researchStem cell research Closing of GuantanamoClosing of Guantanamo Reorganizing of Executive OfficeReorganizing of Executive Office 147 orders as of 2/15/13147 orders as of 2/15/13

Issue d: Executive privilegeIssue d: Executive privilege

The Nixon Tapes CaseThe Nixon Tapes Case

Clinton and the Lewinsky caseClinton and the Lewinsky case

Bush Administration and Executive Bush Administration and Executive PrivilegePrivilege

Argued that Argued that Executive Privilege Executive Privilege precluded precluded Congressional Congressional testimony of testimony of Harriet Miers and Harriet Miers and others regarding others regarding U.S. Attorney U.S. Attorney firings.firings.

Vice President Cheney:Vice President Cheney:Executive or Not?Executive or Not?

2001: Congressional probe 2001: Congressional probe into energy policy into energy policy ““would would unconstitutionally unconstitutionally interfere with the interfere with the functioning of the functioning of the executive branch.executive branch.””

In Court case, avoided In Court case, avoided claim of claim of ““executive executive privilege.privilege.””

Cheney in 2007Cheney in 2007

Regarding issue of handling of Regarding issue of handling of classified material: the Vice classified material: the Vice Presidency is not Presidency is not ““an entity within the an entity within the executive branch.executive branch.””

Claim later withdrawnClaim later withdrawn

Issue d: National Security Issue d: National Security PowerPower

State Secrets Power

U.S. v. Reynolds (1953)

The Case of Anwar al-Aulaqi

Lethal forceLethal force Legal if:Legal if:

• Imminent threatImminent threat

of violent attackof violent attack• Capture not feasibleCapture not feasible• Consistent with Consistent with

““law of warlaw of war””principles principles

III. President as Chief Legislator: III. President as Chief Legislator: Innovative uses of Innovative uses of ““the vetothe veto””

““Every Bill which shall have passed Every Bill which shall have passed the House of Representatives and the the House of Representatives and the Senate, shall, before it become a Senate, shall, before it become a Law, be presented to the President of Law, be presented to the President of the United States; If he approve he the United States; If he approve he shall sign it, but if not he shall return shall sign it, but if not he shall return itit””

Presidential Vetoes, 1933–2013 Presidential Vetoes, 1933–2013

PresidentPresidentCoincident Coincident CongressesCongresses

Regular Regular vetoesvetoes

Pocket Pocket vetoesvetoes

Total Total vetoesvetoes

Vetoes Vetoes overriddenoverridden

F. D. RooseveltF. D. Roosevelt 73rd–79th73rd–79th 372372 263263 635635 99

TrumanTruman 79th–82nd79th–82nd 180180 7070 250250 1212

EisenhowerEisenhower 83rd–86th83rd–86th 7373 108108 181181 22

KennedyKennedy 87th–88th87th–88th 1212 99 2121 ——

L. B. JohnsonL. B. Johnson 88th–90th88th–90th 1616 1414 3030 ——

NixonNixon 91st–93rd91st–93rd 2626 1717 4343 77

FordFord 93rd–94th93rd–94th 4848 1818 6666 1212

CarterCarter 95th–96th95th–96th 1313 1818 3131 22

ReaganReagan 97th–100th97th–100th 3939 3939 7878 99

G.H.W. BushG.H.W. Bush 101st–102nd101st–102nd 2929 1515 4444 11

ClintonClinton 103rd–106th103rd–106th 3636 11 3737 22

G. W. BushG. W. Bush 107th–110th107th–110th 1111 11 1212 44

ObamaObama 111-112th111-112th 22 22

Total in historyTotal in history    1,4961,496 1,0671,067 2,5632,563 110 (4%)110 (4%)

Pocket VetoPocket Veto

Nixon and the Nixon and the ““recessrecess”” pocket veto pocket veto

Item vetoItem veto

One year wonderOne year wonderClinton v. New Clinton v. New

YorkYork

——request for request for reinstatement by reinstatement by

BushBush

The Signing StatementThe Signing Statement

Bush—12 vetoes, 4 overriddenBush—12 vetoes, 4 overridden Bush added signing statements challenging the Bush added signing statements challenging the

constitutionality of more than 1,100 separate constitutionality of more than 1,100 separate sections in 150 laws. All the presidents who came sections in 150 laws. All the presidents who came before have added signing statements totaling before have added signing statements totaling 600 sections of law. 600 sections of law.

• Domestic spyingDomestic spying• ““secret operationssecret operations””• Torture banTorture ban

Obama and Signing Obama and Signing StatementsStatements

““signing statements serve a signing statements serve a legitimate function in our system, at legitimate function in our system, at least when based on well-founded least when based on well-founded constitutional objections. In constitutional objections. In appropriately limited circumstances, appropriately limited circumstances, they represent an exercise of the they represent an exercise of the President's constitutional obligation President's constitutional obligation to take care that the laws be to take care that the laws be faithfully executed.faithfully executed.””

Chadha family and Chadha family and Congressional vetoCongressional veto

Ruled unconstitutional, but Ruled unconstitutional, but used anywayused anyway

IV. President as Commander-in IV. President as Commander-in Chief Chief

The President shall The President shall

be Commander in be Commander in

Chief of the Army Chief of the Army

and Navy of and Navy of

the United States the United States

Strategic Placement of Troops: Strategic Placement of Troops: Theodore Roosevelt and the Theodore Roosevelt and the ““White White

FleetFleet””

Korea and Vietnam: Korea and Vietnam: Undeclared WarsUndeclared Wars

War Powers Resolution, 1973War Powers Resolution, 1973

The Bushes and the The Bushes and the Middle EastMiddle East

Similarities and differences Similarities and differences

2001 Authorization to Use 2001 Authorization to Use Military ForceMilitary Force

AUMFAUMF

V. President as Chief DiplomatV. President as Chief Diplomat

““He shall have power, by and with He shall have power, by and with the advice and consent of the the advice and consent of the Senate, to make treaties, provided Senate, to make treaties, provided two thirds of the Senators present two thirds of the Senators present concurconcur””

Woodrow Wilson and The Treaty of Woodrow Wilson and The Treaty of VersaillesVersailles

Checks and balancesChecks and balances

Executive AgreementsExecutive Agreements

Increased useIncreased use Bricker Bricker

AmendmentAmendment

Prior to 1940 the U.S. Senate had ratified 800 treaties and presidents had made 1,200 executive agreements; from 1940 to 1989, presidents signed nearly 800 treaties but more than 13,000 executive agreements. Since 1939, more than 90% of international agreements have been executive agreements.