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Chapter 10 The Presidency LEARNING OBJECTIVES After students have read and studied this chapter they should be able to: • Understand the qualifications needed to run for president, and the process involved.

• Identify and briefly define the roles of the president (head of state, chief executive, commander in chief, chief diplomat, and chief legislator).

• Identify and explain the types of presidential powers (expressed powers, including constitutional and statutory powers, as well as inherent powers).

• Understand the president’s responsibilities toward his or her political party and various constituents.

• Identify and describe three types of special presidential powers (emergency powers, executive orders, and executive privilege).

• Understand impeachment, differentiate it from conviction, and give historical examples of the process.

• Understand the overall organization and flexibility in structure of the executive branch.

• Describe the cabinet and some of its primary positions.

• Describe the Executive Office of the President and some of its primary units (particularly the White House Office, Office of Management and Budget, and The National Security Council).

• Trace the evolution of the vice president’s role as an adviser and successor to the president.

• Describe the Twenty-fifth Amendment and discuss potential problems associated with it.

TOPICS FOR DISCUSSION How has the presidency evolved from the time of George Washington to the time of Barack Obama?

When traveling to other countries, the president is greeted in a dual capacity: leader of government and head of state. How does this affect the president’s actions?

Did the founders think of the president as chief legislator? Besides the State of the Union message and the veto, what legislative powers did they grant to the president?

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Who develops policy within the executive branch?

What has happened to the power of the presidency in this century? How did the New Deal impact the presidency? How has the role of government changed with the shifting role of the president? If the president has gained power, which branch has lost power? How has Congress tried to protect the balance of power?

Consider the situations in which impeachment has been employed. Ask students whether they would have voted to impeach Andrew Johnson for choosing to violate an act of Congress that was clearly unconstitutional. Once you’ve made it clear that Clinton was impeached for perjury and obstruction of justice, ask students whether they would have impeached Clinton for the affair with Monica Lewinsky. Use this as a jumping off point to discuss what they view as an impeachable offense.

Finally, consider whether they believe that George W. Bush committed impeachable offenses with any of these actions: 1) deceiving the American people on the necessity of war with Iraq, 2) ineffectively planning and executing the war, and 3) ignoring the Foreign Intelligence Surveillance Act by authorizing the National Security Agency to engage in warrantless surveillance of American citizens who are suspected of communicating with terrorist suspects.

Consider the Twenty-fifth Amendment. It has only been invoked a few times in history, and has often been ignored. It was not invoked during President Reagan’s hospitalization for a gunshot wound from an assassination attempt. But it was invoked by President George W. Bush during his colonoscopy. Why has it been used so infrequently? What are the dangers of the reluctance of presidents (or vice presidents or cabinet members) who do not insist on a strict interpretation of the law’s intent?

BEYOND THE BOOK Many supporters of Al Gore were outraged by the result of the 2000 elections. Most of the protests, however, were aimed at the disputed votes in Florida, which ultimately determined the outcome of the election in the electoral college. Though Gore won the popular vote, there was relative acceptance of the role the electoral college plays in electing the president. Changing or abolishing the electoral college would be very difficult. An amendment to the Constitution would have to be proposed by Congress and then ratified by three-fourths of the states. This would require overwhelming support in Congress and state legislatures, many of which represent smaller states that might lose power as a result of such a move.

If no vice-presidential candidate receives a majority of electoral votes, the Senate elects the vice president.

The last time this occurred was in 1836 when Richard M. Johnson, the Democratic vice-presidential candidate, did not receive a majority of the electoral votes. The electors from Virginia chose not to support this candidate because he had allegedly lived with an African-American woman and fathered two daughters with her. The Senate elected Johnson as the vice president regardless of the scandal.

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In addition to friends acting as informal advisers, the president sometimes relies on family members.

President Kennedy selected his brother Robert Kennedy as the attorney general and relied heavily on his advice. During the Johnson administration, however, Congress enacted legislation that prohibits the president from appointing family members to formal executive positions. This has not stopped presidents from seeking the advice of family members. Many presidents, including Carter, Reagan, and Clinton, admitted that they often sought the advice of their spouses when making important decisions. President Clinton formed a task force headed by his wife, Hillary Rodham Clinton, to address the issue of health care. Is such reliance problematic? What role might Bill Clinton play in a Hillary Clinton presidency?

Usually the presidential candidate selects a vice-presidential candidate who will help to balance the ticket. While this may win the election, it presents some problems if the balancing is done in terms of political philosophy. Then the president is faced with a vice president who has taken significantly different positions on major policy issues. Ronald Reagan selected a running mate who was his chief rival for the Republican nomination. When campaigning against Reagan, George H.W. Bush referred to Reagan’s views on fiscal policy as “voodoo economics.” Within nine months of making this statement, Bush was sworn into office as the vice president to Reagan. Al Gore chose Connecticut Senator Joe Lieberman as his running mate, despite the fact that Gore and Lieberman had opposing views on school vouchers and other issues (Lieberman favored them, Gore did not).

Under what circumstances would the cabinet and vice president submit a letter to Congress under the Twenty-fifth Amendment? Had this amendment been a part of the Constitution when President Woodrow Wilson had a stroke, it would have placed the vice president and the cabinet in a difficult position. If they had voted to replace the president, they would have been criticized for seeking the executive power. If they had not voted to replace the president, they would have been criticized for failing to take action. To date, this provision of the Twenty-fifth Amendment has not been used. If it ever is used, it could prove controversial.

CHAPTER OUTLINE No nation in the world had an elected head of state at the time the U.S. Constitution was written, so no model was available to review. After much debate over strong versus weak executives, the delegates created a presidential position with enough powers to balance those of the Congress.

I.

Who Can Become President?

The president receives a salary of $400,000 plus $169,000 for expenses and many free services. Article II, Section 1 of the Constitution states the qualifications. The two major limitations involve being at least “the Age of thirty-five Years” and being a “natural-born Citizen” (which is not defined and has never been addressed by the Supreme Court). While these minimal requirements would seem to allow most people the opportunity to run, only a few individuals have had a realistic chance. A clear pattern evolves when reviewing a list of U.S. presidents. All have been male. Until Barack Obama

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was elected in 2008, all had been white. All have been Protestant except one, John F. Kennedy. The average age has been fifty-four.

II. The Process of Becoming President Once candidates have been nominated by their parties, their goal is to win a majority of the votes cast in the electoral college. Since most states choose electors through a plurality system, a candidate can lose the popular vote but still win the election, which has occurred four times. Example: George W. Bush in 2000. When more than two candidates run for president, the winner may get less than 50 percent of the popular vote (which is quite common). Sometimes no candidate gets a majority of the electoral college votes (which has occurred twice). Then the House elects the president by voting state-by-state for a candidate from the top three electoral winners. The Constitution did not explicitly describe these electoral procedures, so the Twelfth Amendment in 1804 clarified this matter by requiring that the president and vice president be chosen separately.

III. The Many Roles of the President Over time, the institution of the presidency has evolved into a complex network of often conflicting roles to be played by one person simultaneously. The president acts within at least five constitutional roles: handling ceremonial duties, administering laws, directing the military, setting foreign policy, and getting legislation passed.

A. Head of State. One role is the majestic head of state, a status of symbolic royalty requiring largely ceremonial duties. In most countries, this role is not handled by the leader of government but is a separate position, such as the queen in Britain. Some believe this role cuts into the president’s time to do important work, but many presidents have skillfully used it to get tremendous public exposure.

B. Chief Executive. The president also functions as the chief executive, the leader of government who is required by the Constitution to enforce the acts of Congress, the judgments of federal courts, and the provisions of U.S. treaties.

1.

The Powers of Appointment and Removal. The president heads the federal bureaucracy made up of 2 million civilian employees (which does not count 700,000 U.S. Postal Service workers). Most are civil service jobs based on merit. Others are based on appointment power, high-ranking government positions filled by the president. These political appointments add up to about 8,000 positions, which mean the vast majority of federal employees owe no allegiance to the president. The president’s power to remove these officials is not explicitly granted by the Constitution, but was bolstered by a Supreme Court ruling of 1926 that allows presidents to fire anyone they have appointed. Overall, presidents have only nominal control over the bureaucracy.

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2.

The Power to Grant Reprieves and Pardons. Article II, Section 2 gives the president the power to grant a reprieve—a formal postponement of the execution of a sentence imposed by a court, or a pardon—a release from punishment or legal consequences related to a crime. In 1925, the Supreme Court upheld these powers for any offense (except impeachment as stipulated in the Constitution) before, during, or after a trial and without congressional approval.

C. Commander in Chief. Through this power, control of the armed forces rests in civilian (rather than military) hands.

1.

Wartime Powers. The founders had George Washington in mind when they assigned military control to the president as commander in chief. This role has arguably exercised more power than any other. Modern presidents do not lead troops into combat, but they do wield ultimate military power, especially seen in wartime. Examples: Truman, Johnson, Nixon, Reagan, Bush, Clinton, Bush, and Obama. Only the president can order a nuclear attack. But constitutionally, Congress has the sole power to officially declare war.

However, presidents have sent armed forces into volatile situations without congressional approval. Examples: Truman (Korea), and Kennedy, Johnson, and Nixon (Southeast Asia / Vietnam).

2.

The War Powers Resolution. To strengthen congressional control, the War Powers Resolution of 1973 requires that the president consult with Congress before sending troops into action, report such action within forty-eight hours, and withdraw the troops if Congress does not approve.

D. Chief Diplomat. As chief diplomat, the president dominates U.S. foreign policy and sets its direction. This includes making treaties (with the advice and consent of the Senate), making special agreements with other heads of state (without congressional approval), and nominating ambassadors.

1.

Diplomatic Recognition. The president determines which governments the United States will recognize (or refuse to recognize) as legitimate, due to the responsibility of diplomatic recognition. This is not always a simple or quick decision. Example: the U.S. not recognizing the Soviet Union or China until decades after their communist governments came to power.

2.

Proposal and Ratification of Treaties. The president has the sole power to negotiate treaties with other nations, but a two-thirds vote in the Senate is required for approval. Even if the Senate ratifies a treaty, it will not be valid unless the president approves this version. If not, the president can withdraw the treaty. Example: Woodrow Wilson and the 1919 Versailles Treaty.

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3.

Recent Treaty Efforts. President George W. Bush rejected the Kyoto Agreement on global warming and proposed ending the 1972 Anti-Ballistic Missile Treaty. In April 2010, President Obama and President Medvedev of Russia signed the new START Treaty, a follow-up to earlier arms control treaties, which cuts warheads by 30 percent and missile launchers by 50 percent over ten years.

4.

Executive Agreements. The president can also make international agreements with the heads of foreign governments. These executive agreements do not require the approval of the Senate (though the House may deny the funds to enact them) and they do not bind future presidents as treaties do. Their power is in their immediacy (when a crisis looms) and secrecy (when the interests of the American people, or the president, are at stake).

E. Chief Legislator. Some powers as chief legislator are depicted in the Constitution, which requires that presidents recommend necessary and expedient legislation to Congress. This does not guarantee such efforts will be successful, however.

1.

Creating the Congressional Agenda. The president plays a major role in shaping the congressional agenda. Every year since 1913, the president has given the State of the Union message in a formal address to Congress (and the American people, and the world), outlining the broad legislative agenda for Congress to accomplish. Many polite customs have developed around the speech, but members’ applause or silence at various points indicates their actual support or opposition of the policies that the president announces.

2.

Getting Legislation Passed. The president often relies on the power of persuasion to convince Congress to pass favored proposals. If the president is from the party in control, it will be easier to get Congress to consider the legislative agenda. When the opposition party controls Congress, it can be tough. In that case, the power to veto legislation may come into play.

3.

Saying No to Legislation. If Congress decides to ignore the president’s agenda and pursue its own legislation, the president may attempt to stop legislation by use of the veto message, the formal explanation of opposition. The Constitution requires that the president must act on every bill by choosing one of several options: 1) signing the bill into law, 2) allowing the bill to become law without a signature by holding it for more than ten days, 3) rejecting the bill with a veto message to Congress, or 4) killing the bill by holding it for more than ten days during which Congress adjourns (called a pocket veto). The veto power has been increasingly used since the Civil War.

4.

The Line-Item Veto. President Reagan was the first to push for another tool, the line-item veto. In 1996, Congress passed the Line Item Veto Act, which allowed the president to review a piece of legislation and oppose only certain issues in it without rejecting the entire bill. In 1998, the Supreme Court ruled this practice as unconstitutional and overturned the act.

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5.

Congress’s Power to Override Presidential Vetoes. When the president vetoes a bill, it is possible for Congress to override that veto, but a two-thirds vote in both chambers is required. Consequently, only about 7 percent of vetoes have been overridden.

6.

Signing Statements. When signing a bill into law, the president may add a written declaration with personal commentaries. These signing statements might give specific directions for administration, state objections to certain parts of the law, express concern about its constitutionality, or just add purely rhetorical comments (historically the most common reason). George W. Bush used them more than all previous presidents combined, often in expressions of opposition, thereby invalidating more than 1,000 legal provisions.

F.

Other Presidential Powers. All of the powers above are constitutional powers, those vested in the president by Article II. Other powers that Congress has bestowed on the president are statutory powers. Both kinds are expressed powers because they are expressly written into the Constitution or into law. But presidents also have inherent powers, those needed to fulfill official duties as prescribed (vaguely) in the Constitution as taking care that laws will be faithfully executed. Example: the emergency powers invoked in wartime.

IV. The President as Party Chief and Superpolitician Though the Constitution does not mention any role for presidents regarding political parties, today they are the leaders of their parties.

A. The President as Chief of Party. The president chooses the party’s national committee chair and disciplines those who fail to support party policies. Presidents have historically used patronage, rewarding loyal followers with jobs or contracts, though its effectiveness decreased with civil service in the 1880s. Increasingly, the president’s most influential role has been primary fund-raiser. The president may encourage loyalty by campaigning for a certain candidate, supporting a sitting member’s initiative, or otherwise rewarding followers (with federal dollars for a local project, tax breaks, or other forms of “pork”).

B. Constituencies and Public Approval. Presidents, like all politicians, worry about their constituencies and their approval ratings.

1.

Presidential Constituencies. The president serves many “constituencies,” including the general public (even nonvoters) and the supporters of the president’s party. The Washington community (the group “inside the beltway”) has become an important constituency that monitors the president’s power and influence on a daily basis.

2.

Public Approval. How much success the president has is at least partly influenced by public support or lack of it. But keeping high approval ratings, as measured by national polls, is very difficult for a president.

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3.

Recent Presidents and the Public Opinion Polls. George W. Bush had the highest approval ratings in history after September 11, 2001. By the time he left office, only 25 percent of the public approved of his performance. President Obama began his first term with very high approval ratings that were bound to fall, dropping to 50 percent or under in 2010, possibly due to his ambitious progressive agenda.

4.

“Going Public.” Presidents have increasingly leaned toward speaking to the public rather than to Congress. When they need congressional approval for an idea they sometimes take their case directly to the people. This practice of “going public” is an attempt to generate popular support for a proposal so it will receive less resistance from legislators.

V. Special Uses of Presidential Power The president has a number of specialized powers and privileges not given to the other branches of government, including emergency powers, executive orders, and executive privilege.

A. Emergency Powers. The president has the authority to act in times of national crisis, particularly regarding foreign affairs. The Supreme Court identified and confirmed these emergency powers in United States v. Curtiss-Wright Export Corporation in 1936. Before and after this case, emergency powers have most commonly been invoked in times of war. Examples: Lincoln suspending civil liberties and using state militias in the Civil War, Roosevelt declaring a national emergency when France fell during WWII, Truman seizing control of steel plants during the Korean War. B. Executive Orders. An executive order is a rule or regulation issued by the president that has the effect of law. It can enforce legislative statutes, constitutional provisions of treaties, or agency rules or practices. Under the Administrative Procedure Act of 1946, all executive orders must be published in the Federal Register, a daily publication of the U.S. government. They have been used for more routine bureaucratic issues such as appointing administrators or restructuring the White House, as well as more critical national security issues such as classifying documents or establishing military tribunals.

C. Executive Privilege. The right of the president and administration to withhold information from, or refuse to appear before, a legislative committee or a court is called executive privilege.

It is based on the constitutional doctrine of the separation of powers. Presidents claim it is needed for national security, while critics argue it shield actions of the executive branch from public scrutiny.

1.

Invoking Executive Privilege. Presidents claim executive privilege to avoid having to disclose information to Congress. Example: George W. Bush refusing to divulge Dick Cheney’s role as chair of the energy policy task force.

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2.

Limiting Executive Privilege. There are limits to this type of claim, such as withholding evidence from criminal proceedings, as confirmed by the Supreme Court. Example: Richard Nixon’s refusing to hand over recorded tapes regarding the Watergate break-in, and being forced to do so by the Court in United States v. Nixon in 1974.

VI. Abuses of Executive Power and Impeachment Articles I and II of the Constitution authorize the House and Senate to remove the president, vice president, or other official for committing “Treason, Bribery, or other high Crimes and Misdemeanors.” This accusation, called impeachment, begins in the House. If the House votes to impeach, the Senate then conducts a trial. No president has ever been impeached and then convicted and removed from office. Examples: Andrew Johnson being impeached by the House but not convicted by the Senate, Richard Nixon facing articles of impeachment and resigning, and Bill Clinton being impeached by the House on charges of perjury and obstruction of justice but not convicted by the Senate.

VII. The Executive Organization At one time, presidents answered their own mail and typed their own letters. It was not until the 1850s that they were assigned even a single secretary. Significant growth in the executive staff took place in the twentieth century, particularly during Roosevelt’s long tenure and its extensive New Deal and WWII initiatives.

A. The Cabinet. Though not specified in the Constitution, virtually all presidents in history have surrounded themselves with an official advisory group, or cabinet.

1.

Members of the Cabinet. Originally consisting of only four positions, the cabinet has expanded to fourteen department secretaries and the attorney general. It may include others chosen by the president. Example: President Obama added the vice president, chief of staff, trade representative, UN ambassador, and heads of the CEA, EPA, and OMB. The cabinet meets to receive directives from the president, provide information from their areas of specialization, and to give advice on matters of state. The president also relies on advice from an informal group of close friends, called the kitchen cabinet.

2.

Presidential Use of Cabinets. Since any interaction is purely discretionary, some presidents have relied on their cabinet more than others. Example: Eisenhower. Others may rely heavily on cabinet advice, but then do what they think best anyway. Example: Lincoln.

And departmental heads may be more concerned with their own ambitions and staffs, so cabinet priorities can conflict with presidential goals.

B. The Executive Office of the President. Congress created the Executive Office of the President (EOP) to provide staff assistance to the chief executive. Since then, agencies have continually

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been added and removed, allowing for ongoing reorganization. Example: President Obama’s revising the EOP into eleven agencies (see list on p. 238). Several are of particular importance: 1.

The White House Office. The president’s legal counsel, secretary, press secretary, appointments secretary make up the White House Office. Example: President Obama’s revising the White House Office into seventeen units (see list on p. 238). In recent years, the chief of staff has coordinated the group and acted as one of the president’s key advisers.

Members of this office are highly political (often being former campaign officials), and their main duty is to protect the president’s political interests. In addition, military personnel belonging to the White House Military Office support the president.

2.

The Office of Management and Budget. The Bureau of the Budget was created in 1921 within the Treasury Department. It was reorganized by President Nixon in 1970 and renamed the Office of Management and Budget (OMB). It prepares the president’s budget for congressional approval. In principle, it seems to have broad fiscal powers, but its effect on the greater scope of the federal budget is not clear. Its practical role as clearinghouse for legislative proposals may be more important.

3.

The National Security Council. The president’s key foreign and military advisers make up the National Security Council (NSC). It includes the president, vice president, secretaries of state and defense, national security adviser, and other key officials.

VIII. The Vice Presidency The only formal duty of the vice president set out in the Constitution is to preside over the Senate, which is rarely necessary.

A. The Vice President’s Job. Traditionally, the presidential candidate selects a vice-presidential candidate who will would “balance the ticket,” often someone with different geographical roots, constituency strengths, or political philosophies. Recently, other reasons have become important. Examples: Joe Biden being chosen for his foreign policy experience, Sarah Palin being chosen for her gender and social conservative stance. Assigned tasks have often been quite minor, though responsibilities have sometimes spiked. Examples: Mondale being the first to act as a major adviser, Cheney becoming the most powerful vice-president in history, Biden’s role being more conventional.

B. Presidential Succession. Vice presidents have one major responsibility: taking over if the president resigns, dies, or is incapable of performing official duties. Eight vice presidents have taken office due to a president’s death. Presidential disability has frequently occurred, but the correct response is not addressed in the Constitution. Some modern presidents have made pacts with their vice presidents regarding this issue. In 1967 the Twenty-fifth Amendment was passed, which addressed the problem of presidential incapacity.

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C. The Twenty-fifth Amendment. This amendment states that a president must notify Congress in writing if he or she is unable to perform the duties of the office, and the vice president will serve until the president is able to return. If the vice president and a majority of the cabinet become aware of a presidential incapacity, they can declare this to Congress, and the vice president will take over. If a dispute arises, Congress makes the final decision.

D. When the Vice Presidency Becomes Vacant. The Twenty-fifth Amendment also deals with the vacancy in the vice presidency. It states that the president should nominate a new vice president who must be confirmed by a majority of both houses. If both officeholders should die or otherwise be unable to serve, the line of presidential succession, established by the Succession Act of 1947, appoints the Speaker of the House as president, and so on (see Table 10-1).

IX. Features A. Politics of Boom and Bust: The Audacity of Barack Obama. President Obama hit the ground running on a liberal agenda of ending torture as an interrogation technique, preparing to leave Iraq, placing a limit on the U.S. tenure in Afghanistan, and overhauling the health-care system—plus addressing the failing economy with a stimulus package, extended budget, and takeover of auto manufacturers. During these initiatives, he called for a new spirit of cooperation in Washington. While Obama does seek cooperation from the opposition when he can get it, he has always been committed to advancing a progressive agenda that he outlined in his book, written well before his presidential campaign, The Audacity of Hope.

B. Making a Difference: Communicating with the White House. Every day, the White House receives several thousand letters, phone calls, and other communications. Though ordinary citizens may assume that their voices will not be heard, that is not necessarily true. Those who wish to articulate their opinions directly to the White House can send letters to the President (as well as the First Lady), which almost certainly will be responded to by a staffer. They can also call the White House and leave a message, call the comment line and speak with an operator, fire off an e-mail, or make contact on the Internet home page of the White House.

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