Presidential Power


This course will not discuss the campaign/selection process, and will instead focus on the power (both legal and political) that presidents have once in office.




Must understand context of creation of presidency, to understand the power that the framers of the Constitution intended to give the Presidency!


1. The British Monarch

                Divine Right of Kings—Romans Chapter 13—Royal Prerogative, absolute under despots, until English revolution of 1688, and English Bill of Rights established in 1689.  But still, though limited by Parliament, the King (or Queen) inherited the throne and served for life.


Locke:  Second Treatise on Government, 1689

Executive Prerogative is right of executive to do anything for the public good, EVEN violate law if necessary during crisis or emergency, but ONLY FOR THE PUBLIC GOOD; otherwise it is an abuse of the people’s liberties and is thus illegitimate.

Section 164:  “Prerogative can be nothing, but the Peoples permitting their Rulers, to do several things of their own free choice, where the Law was silent, and sometimes too against the direct Letter of the Law, for the publick good; and their acquiescing in it when so done.”

                THUS, prerogative is the power of the executive to do not anything, but ANYTHING THE PEOPLE ARE WILLING TO SUPPORT.

                Thus, the people can limit prerogative all they want, by constitutional provision or whatever, because prerogative is BY DEFINITION whatever the people are willing to support.  Thus a tyrant can NOT claim executive prerogative, because the people don’t support it!


William Blackstone, Commentaries on the Laws of England  (1769): “For prerogative consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if the discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner.”


2. U.S. Colonial and State Governors

                Prior to Independence, colonial governor were quite strong:  appointed by the King, and could absolutely veto legislation, dissolve legislatures, and create and appoint courts.

                After Independence, state governors were reduced to almost nothing: brief (usually one-year) terms; chosen by the legislature, ineligible for re-election; decisions had to be approved either as part of, or by, an “executive council”; few and  vague powers; could not veto legislation; could not make appointments.  Constitution of New York was an exception, with a unitary governor, elected by the people, 3-year term, re-eligible indefinitely, most of powers enumerated in U.S. Constitution (commander-in-chief, pardons, vetoes, appointments, etc.)            


3. Articles of Confederation: NO executive!!!


4. Framing of U.S. Constitution

                Who? 35 years old; natural born citizen (feared foreign-born leaders would have loyalty to their “homeland”, not U.S.  This is pretty much obsolete today, and this disqualifies lots of foreign-born U.S. citizens: Arnold Schwarzenegger (Gov. of California), Madeline Albright (Secretary of State under Bill Clinton); Henry Kissinger (Secretary of State under Nixon) also current governor of Michigan.


Selection? Electoral College


                Term? Framers went round-and-round on this for weeks:  2, 4, 5, 7, 8, 10, 12, 15, 20, life (“good behavior”); early drafts had single 7-year term (not re-eligible). Finally: 4-year term, but eligible for re-election.  BUT now limited to 2 terms: 22nd Am. 1951, after FDR was elected to 4 terms and thus was the first president to break with the tradition set by George Washington of a self-imposed limit of two terms.


***Powers? HERE is the big problem today, yet it received surprisingly LITTLE discussion or debate by the framers!!!


NOTE basically 4 options (going weakest to strongest)

1. plural executive   2. unitary executive with enumerated powers   3. unitary executive with executive prerogative and some limitations 4. monarchy


a. Article II, Section 1:  “The executive Power shall be vested in a President of the United States of America.”

“Vested” means the powers are granted (guaranteed) by the Constitution, and NOT derived from the legislature or elsewhere.


b. Compare: Article I, Section 1: “The legislative powers herein granted shall be vested in a Congress of the United States . . .”

Article II, Section 1:  “The executive Power shall be vested in a President of the United States of America.”

Article III, Section 1: “The judicial Power of the United States shall be vested in one supreme Court . . .”


NOTE:  Article II doesn’t enumerate any other powers of the President—it just says “the executive power” unlike Article III which says “the legislative powers herein granted  Governeur Morris, Chair of the Committee on Detail, was a well-known supporter of a strong executive.  He did not change the vesting clause for the President, as any changes would have been caught.  But he changed the vesting clause for Congress by adding in the words “herein granted” so that it now says  “the legislative powers herein granted” So now is the “executive power” limited to the powers granted by the Constitution or not?  What is included in an "executive power?  Does it include an “executive prerogative?!”


c. Also, Article II of Constitution doesn’t have a “necessary and proper clause” like Article III does.  So does this mean only narrow powers, or broad powers to listed (enumerated) powers, especially since Article II doesn’t refer to powers “herein granted”?


d. Commander-in Chief “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States:”

                NOTICE: this creates an office, NOT a power.  It doesn’t say “he shall command the Army and Navy.”

                Lincoln argued this gave broad powers, such as allowing him to free slaves in the Emancipation Proclamation.


e. Oath of office: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."”

                Lincoln argued his “duty to preserve the Constitution” overruled any specific Constitutional provision preventing him from doing things that would preserve it! e.g. suspend habeas corpus



.Ratification Debates: VERY little evidence even here of what they intended!


How much power was president EXPECTED to have?

Cato, An Old Whig, Federal Farmer, Brutus—President would be King: power to veto laws, as commander in chief, and to pardon crimes would let president use military to take over, pardon criminals who supported him, and block (veto) legislatures from stopping him. etc. etc.


Fed. 68: Hamilton prefaces his other papers on the Presidency by saying anti-federalists have far overstated their case against the Presidency.

Fed. 69:  Hamilton compares the President to a King, and shows how the President will not have the powers of a King.  BUT he nowhere mentions or discusses executive prerogative.


Federalist 70 (Hamilton): Rather than counter-arguing that president would be weak, argued FOR vigorous and energetic president, NOT feeble

--Don’t want weak PLURAL EXECUTIVE (council/committee/group);

rather a UNITARY EXECUTIVE (one person): unity, duration (4 years), power (can act quickly and decisively)

--unity would allow president to engage in decision, activity, secrecy, and dispatch (haste) rather than disputes, gridlock, info leaks, and delay

--unity also allows both blame and accountability (know exactly who to give blame or reward to), unlike a council would


BUT again, Hamilton nowhere even mentions (let alone discusses) whether the executive has executive prerogative . . .


Fed. 71: Hamilton Defends 4-year terms

Fed. 72: Hamilton Defends re-eligibility for office

Fed. 73: why salary can not he reduced, and qualified veto power

Fed. 74: commander-in-chief of army and navy, and pardoning power

Fed. 75: treaty-making power

Fed. 76: appointment power

Fed. 77: appointment power, plus miscellaneous powers; at end Hamilton says:

                The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.” (emphasis added).


James Wilson, Pennsylvania Ratifying Convention, Dec. 4, 1787:  “. . . that officer [the President] is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”


Thus, the great unanswered question of the presidency: what degree of executive prerogative does the president have?


6. Two Views of Presidential Power:

1. Constitutional View: President is limited to only those powers listed in the Constitution (Washington, Taft)

2. Stewardship View (Lincoln, Teddy Roosevelt): President has ALL power to act in the public interest UNLESS expressly prohibited by Constitution: NOTICE that this is essentially the executive prerogative view!  (just short of it . . .. )


7. Legal (Constitutional) Development of executive Prerogative:

                Jefferson –Louisiana Purchase was later ratified by Senate only AFTER it had already been finalized.

                Lincoln—Suspended habeas corpus (ignoring a Supreme Court ruling), issued Emancipation Proclamation, limited free speech/press

                FDR—signed lend-lease deal with Britain, imprisoned Japanese Americans in concentration camps


BUT consider historical development over time:

                1800’s:  decentralized governance, rural agricultural economy, philosophy of laissez-faire economics, rugged invidualism, self-reliance was the key virtue promoted and expected of people; also in the global arena, the U.S. was isolated physically by a vast ocean, and foreign invasion was seen as impossible, so there was no need for much of any standing peacetime military.  Thus, because of rural, self-reliant isolation, presidents were not expected to do much, and in general they didn’t!

                1900’s:  centralized, urban population, industrial-based integrated economy, with accompanying need for economic management and regulation, sharing and cooperation became new virtue; also in the global arena, the rise of transportation technology (air travel) and communication technology (radio and television) and military technology (nuclear missiles) meant U.S. was no isolated geographically, and could be attacked from anywhere by anyone at anytime; thus there became a need for a large peacetime standing military.  Now presidents were expected to do much, and they did, or if they didn’t, they lost re-election (e.g. Hoover and the Great Depression; Bush Senior and the economy); or didn’t even bother to run (Johnson and failure in Vietnam).


***So constitutional power has evolved accordingly, moving ever more towards stewardship theory!  The U.S. Supreme Court has come down somewhere in-between, with a broad grant, but limitations also, and depends on whether foreign or domestic policy!.


Youngstown Sheet and Tube Co. v. Sawyer (“Steel Seizure Case”) (1952)

                FACTS: Threatened steelworker's union strike at U.S. steel mills would have shut them down, hindering war effort in Korea.  Taft-Hartley Act allowed President to call for 80-day cooling off period postponing strike if it would seriously threaten the public interest.  Regardless, hours before planned strike, President Truman issued executive order directing Sec. Of Commerce Sawyer to seize steel mills.    

                ISSUE:  Did Pres. Have constitutional authority to order the seizure of the steel mills?

                HOLDING: NO.
                REASONING (Black): President's power must come either from Constitution or Congress.

                                A. no statute at all that allows this (either expressly or impliedly).

                                B. here, no constitutional power—

                                                1. Not from power as commander-in-chief: can't say U.S. territory is in "theatre of war," so can't analogize from power to conduct war within the area of warfare.

                                                2. Not from broad implied "executive" power: Exec. has only limited legislative functions: signing or vetoing laws passed by Congress.  Here, executive order was like a statute.


                CONCUR: Jackson: 3 types of presidential actions:

                                1. Congress has expressly or impliedly authorized the action: heavy burden on challenger of action

                                2. Congress is silent on the issue—no grant or denial of authority: ~preponderance of evidence either way; president acts in a “zone of twilight”

                                3. Congress had expressly or impliedly forbidden the action: heavy burden on President to justify action


                                Thus, President's power is greatest in first category, and lowest in third category.

                                HERE, Congress had listed reasons for seizure of steel mills, but labor strike wasn't one of them, and the 80-day cooling off (postponement of strike) was all that was allowed.

                                Also, can't let president declare "emergency" situation, because slippery slope: "emergency" could mean anything.


                                Dissent (Vinson)


                Notice:  Jackson’s Concurrence followed since, because both more precise yet more flexible at the same time!



                Criticisms of Youngstown:

                1. why not a political q, and leave it to Congressional prohibition and impeachment if disobedience to Congressional prohibition

                2. The Presidency is structured for quick and decisive action, especially during war or national emergencies; this was the original intent of the framers.  AFTER president acts, THEN Congress deliberates and decides whether to ratify or revoke President’s actions (Dangerous to not give pres power to act without Congressional authorization—e.g. nuclear war imminent—shouldn’t pres. Be able to do ANYTHING to stop it?  E.g. in Movie Failsafe, president authorizes the nuking of NYC (!) to appease Russians and prevent WWIII)

                3. “Stewardship” theory—Presidency has ALL power for public good unless prohibited

                4. Implied Power as Commander-In-Chief to act during war or national emergency


                Implications of Youngstown

                “Executive Orders” often issued, dealing with

                                a. organization of executive branch—e.g Executive Office of the President in White House—e.g. CEA, NSC, OMB

                                b. use of federal property—e.g. open up Grant Teton N.P. to snowmobiles (Bush); freeze new roads in wilderness areas (Clinton)

                                c. terms of government contracts –e.g. affirmative action, no research grants to stem cell research

                Are executive orders unconstitutional???

                Q. Was Lincoln’s Emancipation Proclamation constitutional?!


                ***Q: Does Jackson’s concurrence basically recognize the existence of (limited) executive prerogative in domestic affairs?!



Dames and Moore v. Regan (1980)

                By executive order, because of the taking of American hostages by Iran, President Carter suspended claims against Iranian Assets in U.S. courts, and created a Claims Tribunal to settle all such disputes.  As part of the hostage release agreement, President Reagan agreed to terminate all claims by U.S. nationals against Iranian assets.  Dames and Moore, which claimed to be owed money by Iran pursuant to a contract, filed suit challenging the President’s Actions.  The Court explained:


                “Although we have in the past found and do today find Justice Jackson's classification of executive actions into three general categories analytically useful . .. it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.


As we have noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially . . . in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the Executive. On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures of independent presidential responsibility," Youngstown, (Jackson, J., concurring). At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President.


Finally, we re-emphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. As the Court of Appeals for the First Circuit stressed, "[t]he sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary." But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims.”



Conduct of Foreign Affairs:  One of few areas of executive involvement where there is wide agreement that the President should be and is the lead policymaker, have widespread discretion, and is (with the executive branch) our primary representative with foreign nations.


                Blackstone on Royal Prerogative

                Madison’s notes of the Convention


                Pacificus-Helvidius debate.


                Article II:  “receive ambassadors . . . . “ includes power to recognize legitimacy of other nation’s governments, and/or cut diplomatic ties with other nations.  (See Fed. 69)


                A. Non-military foreign Affairs BROAD discretion:




U.S. v. Curtiss-Wright Export Corp. (1936)

                FACTS:  Congress granted Pres. Authority to prohibit arms sales to Bolivia/Paraguay conflict.  Curtiss-Wright Export Corp. (airplane manufacturer) violated criminal prohibition, said Congress could not grant such authority to President.

                ISSUE:  May Congress delegate such broad "lawmaking" power to the President over foreign relations, even though it would be invalid delegation of law-making authority to President if it involved only internal affairs.

                HOLDING: Yes


                                Part A. Enumerated Powers in Constitution apply only to INTERNAL affairs; no limits on grant of power to federal government related to questions of external sovereignty (FOREIGN affairs) because these powers are inherent to any sovereign governemt:

                                Part B. President is "sole organ of the nation in its external relations, and its sole representative with foreign nations."  Absolute discretion to negotiate treaties, even though Senate must approve treaty.

                                Why?  a  unity --one person easier to get agreement than a body

b. caution and secrecy --one person can keep secret than a body

c. better information—agents and confidential sources around the world

d. dispatch—one person can decide more quickly than can a body


                NOTE: 1. Court uses all the arguments of Hamilton in Fed. #70!

2. Court inaccurately summarized history: e.g. Washington DID acquiesce in Senate approval.

3. Case dealt only with situation where Congress DID authorize the president’s action

4. Case dealt only with situation involving foreign commerce, NOT war

5. YET, despite the court’s limited holding, presidents (and scholars) since the case have quoted it’s broad language in support of a BROAD, GENERAL right of President to have TOTAL discretion in establishing U.S. foreign policy!!



Treaties: 2/3 vote required by Senate to approve treaties.


See Fed. 64 and 75: Treaties; Fed. 72: foreign negotiations

But terminating treaties?  No court decision, but Presidents HAVE done so:

                Andrew Jackson ignored treaty with Cherokee nation, and then ignored Supreme Court ruling in its favor.

Carter recognized PRC, violating a treaty with Taiwan,

Bush Jr. unilaterally disavowed the ABM treaty with Russia (from the 1970’s).


Executive Agreements

                U.S. v. Belmont (1936) okayed executive agreements, which are sort of like treaties, but entered into sometimes only by the President, or by the President with approval of only a majority of Congress (not 2/3 or Senate).

OR Presidents can seek a “joint resolution” requiring only majority vote (rather than 2/3 of Senate)

 e.g. Tyler annexed Texas without a treaty with the Texans,

McKinley annexed Hawaii against the Hawaiian’s will.

Also, NAFTA, GATT, WTO—just majority approval by Congress for the President’s joining of the U.S. in these “agreements.”


NOTE: broad, general global policies can be set by a president without any formal international treaty or executive agreement:

                                Monroe Doctrine 

                                Truman Doctrine

                                Bush (Jr.) Doctrine: doctrine of pre-emption



                B. MILITARY AFFAIRS

("The president shall be COMMANDER-IN-CHIEF of the Army and Navy of the United States, and of the militia of the several states") , Art. II, sec. 2, para. 1)

But what powers does this grant??? Given Article I says “Congress may . . . . declare War . . . “


Fed. 74 (Hamilton) Here is the ENTIRETY of Hamilton’s discussion of so awesome a power:

“THE President of the United States is to be ``commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.'' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.”


                A. Internal/Domestic Wars (Rebellion):

                Article I, Section 8, says Congress can call forth the militia

                Article II, Section 2 authorize the President to call forth the militia

                Article II, Section 3: President can order Congress to convene

                Article 4, Section. 4 says very state is guaranteed “a Republican form of government” (i.e representative democracy, not tyranny or anarchy which would result from civil rebellion)

LEGISLATIVE power to suspend habeas corpus (latin: “you have the body”): whenever someone believes they are imprisoned in violation of law (illegally, unconsitutionally) the defendant can file in court a “petition for a writ of habeas corpus” which is court order requiring that the defendant be released from imprisonment. 

ARt. I, Sec. 9: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Lincoln suspended habeas corpus in 1861. That same year in Ex parte Merryman (1861) the U.S. Supreme Court issued writ of habeas corpus to Merryman, a Maryland secessionist, declaring the President had NO such power, as it was delegated solely to the legislative branch.  But the military (i.e. under orders from Lincoln) refused to comply, ignoring the ruling.  Lincoln then broadened suspension in 1862 to arrest anti-war publishers (i.e who proposed a truce or peace with the South)!  Habeas Corpus was not restored until Ex parte Milligan (1866):

                Ex parte Milligan (1866)

                FACTS:  Milligan, living in Southern Indiana was confederate sympathizer, planned an organized revolt.  Arrested , tried, convicted before military tribunal.  Lawyers sought habeas corpus.

                ISSUE: did military commission have legal authority/ jurisdiction to try and sentence Milligan?

                Holding: NO

                Reasoning:  1. Constitution says right to trial by jury and Can't allow suspension or else ANARCHY and DEPOTISM.  Law of war can't be applied where, as in Southern IN, civil courts were open and unobstructed.

                So, right to be tried in court created by Congress with judge having life term., also right to trial by jury.

                                2. President argues martial law declared because time of war. 


                                a. slippery slope: if allow this, allow military government everywhere without rules

                                b. would put military independent of civil authority

                                c. even if emergency suspension of habeas corpus, still get trial by jury

                                RULE:  "martial law cannot arise from a threatened invasion.  The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.

                                Here, not.


***Bush Jr:  detained over 700 people: suspected terrorists, AND even people who were suspected of POSSIBLY knowing SOMETHING about terrorism, even when there was NO evidence of such (e.g. Saudi Arabian citizenship, Islamic political activist, illegal immigrants, etc.) and:

                a. secretly detained them (i.e. no one, not even their closest family, and certainly not the press, was told about the detention)

                b. no access to lawyer given either

                c. since NO ONE knows who is being imprisoned or where, no court is able to give a writ of habeas corpus!  Thus, effectively, the writ of habeas corpus has been suspended!!!




                What about delcaring “martial law”?  i.e. military rule in cases of emergency?


Can declare Martial Law (imposition of military rule) ONLY if civil government unable to continue operating. Ex Parte Milligan (1866)

                NOTE: Use of federal troops or military is not necessarily martial law.

                32 C.F.R. 501.4 –used in cases of civil disturbance, riot, earthquake, flood, hurricane, tornado, etc.

               TITLE 32--NATIONAL DEFENSE
                    Sec. 501.4  Martial law.
    “ It is unlikely that situations requiring the commitment of Federal Armed Forces will necessitate the declaration of martial law. When 
Federal Armed Forces are committed in the event of civil disturbances, their proper role is to support, not supplant, civil authority. Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time. In most instances the decision to impose martial law is made by the President, who normally announces his decision by a proclamation, which usually contains his instructions concerning its exercise and any limitations thereon. However, the decision to impose martial law may be made by the local commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from higher authority (Sec. 501.2). Whether or not a proclamation exists, it is incumbent upon commanders concerned to weigh every proposed action against the threat to public order and safety it is designed to meet, in order that the necessity therefor may be ascertained. When Federal Armed Forces have been committed in an objective area in a martial law situation, the population of the affected area will be informed of the rules of conduct and other restrictive measures the military is authorized to enforce. These will normally be announced by proclamation or order and will be given the widest possible publicity by all available media. Federal Armed Forces ordinarily will exercise police powers previously inoperative in the affected area, restore and maintain order, insure the essential mechanics of distribution, transportation, and communication, and initiate necessary relief measures.”


And even martial law does NOT allow military tribunals IF the civil government is still operating!  (Duncan v. Kahanamoku (1946), where the Hawaiian government was still operating after the attack on Pearl Harbor, even though martial law was declared).


                NOTE that under federal law, Congress has given the President emergency powers in 470 (!) emergency statutes that become effective whenever the President formally declares a “national emergency.”

                Procedurally, the process is set out in the National Emergencies Act (1976) passed by Congress after a Nixon aide testifying before Congress said that Nixon had a specific power in question at the time because the U.S. was technically in a never-rescinded “state of national emergency.”  So Congress decided to clarify how such takes effect and is ended:

                Any “national emergency” declared by President can be terminated by Congress, and it automatically terminates aver one year, unless Pres. renews.


                Substantive powers of the president under an officially declared “national emergency”:

                                1. Power over persons: confinement, travel restrictions, registration with government, employment restrictions, suspend writ of habeas corpus, declare martial law.

                                2. Power of property: can require stockpiling, export restrictions, rationing, industry seizures, wage and price fixing


                Essentially, if all the powers were exercised, the president would have almost all authority of the U.S. government; i.e. executive, legislative, and judicial powers all at the same time.  Truly not just executive prerogative, but royal prerogative!  Like a dictator, even.


ii.  Conduct of EXTERNAL Wars on foreign soil:

                (i.e. Presidential War Power)


(a) In PRESENCE of Congressional Authorization:

                                1. President has total supervisory power of how war is conducted.



                 (b) in ABSENCE of Congressional Authorization:

                                1. Repel Sudden Attacks—everyone agrees this was original intent.


Prize Cases:  The notes from the Constitutional Convention indicate that the President's commander-in-chief power gives him the authority to "repel sudden attacks" without a Congressional declaration. The Framers of the Constitution granted the President this authority to protect the United States against invasion. The Supreme Court validated this authority in the Prize Cases which arose during the American Civil War. President Lincoln used his commander-in-chief power to blockade ports in the Confederate states. He did not receive prior Congressional approval. The owner of the vessels that were captured challenged the constitutionality of Lincoln's exercise of his commander-in-chief powers on the grounds that he exercised them without a formal Congressional declaration of war. The Supreme Court stated, "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority."


Thus, the President has constitutional authority (duty?) when he exercises his commander-in-chief powers to defend the nation against invasion.


BUT note that this allows presidents to enter into hostilities, and then argue that Congress must recognize that hostilities already exist!

                e.g. Polk sent troops into disputed territory with Mexico, where hostilities began, then asked for declaration of war, given war existed!

Congress had to do so, or else face embarrassment of not funding and supportin g troops already engaged in combat.


                2. “Defensive War” --  everyone agrees original intent, but disagree over scope—

                Take Care clause:  “he shall take Care that the Laws be faithfully executed”

                e.g. Take Care clause arguably applies to foreign treaties, AND even international law (law of nations)!

—e.g. aid allies? (e.g. Roosevelt’s “lend-lease” aid of ships to Britain in early WWII)

-- Aid neutral countries? (e.g. first Gulf War 1991, liberate Kuwait from military invasion)

                Bush helped “take care” that international law was upheld . . . arguably, he even had a DUTY!


                3. Pre-emptive strikes—no original intent of this  --e.g. Reagan invades Grenada, Bush Sr. invades Panama, Bush Jr. invades Iraq

                                Movie: Failsafe . . ..


                Can Congress LIMIT Presidential war-making power?


Helvidius—Pacificus  Debate


                War Powers Act (1973)

                Congress wanted to re-assert itself after Pres use of U.S. forces in Vietnam


                WPA passed by overwhelming margins over Presidential veto by Nixon, thus it’s NOT just a “War Powers Resolution.”


                Sec. 1 declares that President may use armed forces ONLY if Congressional authorization or sudden attack.


                Sec. 5(b)—president must cease military operations 60 days after initiating unless Congress expressly authorizes a continuation


SEC. 5. (b)

          Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of Untied States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United   States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States  Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.


                                -is this justiciable?  (political question)?


                Q: What if President declares war and President refuses? 

Q: What if Supreme Court accepts case and issues a ruling (either way) and President ignores?



                 Richard Neustadt--Presidential Power (1980):  Generally considered the most influential book on the presidency.

Presidential Power=The power to persuade: When you boil it down, president is helpless to MAKE anyone do anything; only presidential resources: Skilled staff, media use, professional reputation and prestige, etc. to convince people to support what the president wants! 

                “Presidential Approval” is PROFESSIONAL performance, NOT personal respect


                                e.g. compare:   Carter: high personal ratings (60’s and 70s); but professional rating was low (30’s)

                                                                Clinton: low personal ratings (30’s) but high professional ratings (high 60’s)


                So, What is the source of the President's popularity? Presidential APPROVAL/POPULARITY:

                ***1. ECONOMY: HIGH correlation, even though LITTLE-TO-NO influence over economy!!! (Like sitting in a rowboat on the pacific ocean) Human nature wants to assign responsibility (blame or reward), rather than accepting as complex, or that it “just happens.”

                2. RALLY-ROUND-THE-FLAG EFFECT (National tragedies or crisis—e.g. WAR: Bush Sr. around 90 just as Gulf War won; WTC/pentagon attack, Bush Jr. above 90% within days after attack—record high for ANY president since measured!)

                                why?       1. look to pres for primary leadership and comfort and assurance, support, etc.

                                                2. also don’t want to hurt country’s chance of success of dealing with the situation, by opposing the pres.

                                BUT it fades quickly over time.

e.g. Carter, Iran hostages: 30à60%  almost immediately, yet from 60%à20% over 10 months (no resolution)

                                                e.g. Bush Sr., Gulf War: 50-92% in 2 months (total victory) yet 92-35% over 12 months (bad economy)

                                                e.g. Bush Jr., 9-11 attacks 50%--93% in couple months, yet 93%à48% over 2 years (bad economy, quagmire in Iraq)


3. HONEYMOON PERIOD (first 100 days after take office)—people (even opposition) give new pres. benefit of doubt; “wait & see”

                Thus, this period is key for a president to pass laws the president wants—100 days to pass president’s agenda.

                                “positivity bias” but then decline in approval as president takes positions on issues and is given blame (e.g. economy)

                NOTE: SCANDALS unpredictable.  Sometimes devestating (Nixon & Watergate), sometimes little to no effect (Clinton & Lewinsky)



                                1. Voters have opinions about policies

                                2. Voters must know the candidate’s stand on the policies.

                                3. Candidates must offer alternatives.

                                4. Large voter turnout (majority of population)

                                5. Voters vote based on the policy issues.

                                6. President is able to connect voter support with their policy views.


                Thus, mandates are RARE!!!

                                e.g Bush Jr. Re-election? Majority of popular vote, BUT what were the choices between Kerry and Bush  . . . ?

                                both wanted to: keep troops in Iraq, give seniors prescription drug benefits, increase money to education, get tough on homeland security,  prohibit gay marriage, etc. etc.

And how much of Bush’s support was based no his particular policies—e.g. War in Iraq? privatizing social security?  lawsuit limitations?  revising tax code? constitutional amendment to ban gay marriage?


Thesis: Modern Presidents are doomed to failure:  “Expectations Gap”

there is an “expectations gap”:  Richard Waterman:  “The difference between what the public expects presidents to do and what presidents are actually capable of doing.”  This has increased in recent decades (since FDR):              Measures of “expectations gap”:

                Median approval ratings over course of presidential terms is like a u-curve:

                1-month into presidency:  approval at 70%; 24-30 months: <50%; as new election cycle occurs, invigorating partisans, back up to 60%


                a. Lower general approval ratings--e.g. Bush’s re-election: 50% approval, lower than any re-elected pres since public approval was measured beginning with Truman.  i.e., there is no “honeymoon” with Bush!



                1. Campaigns “overpromise”— Carter balance budget, Reagan fiscal responsibility, , Bush Sr. No new taxes, Bush Jr., Clinton tax cut for middle class, Bush Jr. heal political division.

                2. Endless and constant comparison to past “great presidents” or an amalgam/archetype of a “great president”; an ideal composite, which we have an image of since we’ve been taught about great presidents our whole life

                3. Psychologically, people want to hold an individual accountable for things happening in our nation, either blame or credit, regardless of whether blame or credit is correct or incorrect.  So anytime anything goes wrong (e.g. bad economy) President is blamed.

                4. demand for constant positive performance in the economy, despite little Presidential ability to influence economy

                5. primary national leadership sought from president rather than Congress, despite fact that Congress sets most domestic policy, not Pres.

                6. People have inconsistent/contradictory/paradoxical expectations of the President (Thomas Cronin, The Paradoxes of the Presidency, Skeptic No. 5, 1976)

                                a. policy:  inflation and interest rates low, but employment high

                                                healthy environment, but more low-cost industrial development, energy programs, and jobs

                                                balanced budget, yet more benefits, more defense spending, and yet also lower taxes (!)

                                b. personality:

                                                i. Strong, independent-minded, yet someone who does what the public wants

                                                or decisive and strong-minded, yet also open-minded and flexible

                                                or forceful and decisive, yet gentle and decent

                                                Strong moral leadership, taking courageous stands on principles, yet willing to compromise, and a unifier, not a divider

                                                                If no compromise: rigid, inflexible, a divider; if compromise: weak and unprincipled

                                                ii. party loyalty, yet putting nation ahead of politics

                                                                if loyal to party: political hack; if loyal to nation by joining with opposite party: traitor, sellout

                                                iii. open administration, with transparent decision-making and free flow of information to public,

                                                yet president in firm control of administration

                                                                if dissent exposed, president is weak and not in control

                                                                if dissent is kept suppressed, president is anti-democratic

                                                iv. president should be “average joe” (or “average jane”) who can relate to masses yet superior intellect and character

                                                                if too average: dumb and incompetent

                                                                if too above average, snobbish and aloof

                                                v. --innovative and creative, yet responsive to public opinion and not “radical” in ideas

                                                vi. --inspirational and hopeful, yet not creating false, unrealisitic expectations


What does this lead to? The “Failed” presidency” *** Question: Are ALL modern presidents now doomed to “failed” presidencies?



                Richard Neustadt--Presidential Power (1980):  Generally considered the most influential book on the presidency.

Presidential Power=The power to persuade: When you boil it down, president is helpless to MAKE anyone do anything; only presidential resources: Skilled staff, media use, professional reputation and prestige, etc. to convince people to support what the president wants! 


                Thus, Popularity is key to power to persuade--when can't get Congress, media to cooperate, pres. Resorts to "going public" --Samuel Kernell -televised addresses, press conferences, everyday remarks to reporters, radio speeches, public appearances, etc.


1. BUT President has difficulty getting message out to public via media:

                a. Modern major TV networks (CBS, NBC, ABC, FOX, (not to UPN, WB, mention cable and satellite stations) don’t cover most presidential press conferences and speeches; other than a handful of major speeches (State of Union, etc.)

                b. Even when Presidential speeches are aired on major networks, fewer and fewer viewers are tuning in, instead going to other viewing options such as cable and satellite

                c. news coverage is now increasingly superficial, focusing more on personality and human interest stories

                                some estimates are that now <50% of all news has any actual substance of policy in it


                2. BUT Presidential administration has many ways of manipulating news coverage in its favor:

                a. Public relations:  Pres has huge PR team: VP, Cabinet, White House Staff, party leaders

                                who speak on Sunday Morning network news talk shows, cable TV shows, national and local journalist interviews

                                White House Press Secretary is main liaison between White House and White House Press Corp

                                also special dinners for the White House Press Corp


                b. framing issues:  “frame”=central organizing idea for simplifying an issue

                                e.g.           flag burning: “ free speech,” or “unpatriotic act”?

                                                aid to poor:  “welfare handouts” or “helping the needy”

                                                 Iraq war:  “war on terror” or “diversion”?

                c. symbols and visions:  FDR:  New Deal

                                                Truman: Fair Deal

                                                JFK: New Frontier

                                                Johnson: Great Society, War on Poverty

                                                Reagan: Morning in America, War on Drugs

                                                Clinton: Bridge to 21st Century

                                                Bush Jr.: War on Terror

                d. names of policies: Bush Jr.

“Clear Skies” allows polluters to buy the right to release more pollution

                                                “No Child Left Behind” imposes massive requirements on states without any funding help

                                                “Healthy Forests” allows extensive logging on public lands


                e. Information releases to local media outlets and interest groups, to bypass the national news media

                f. staged media events—e.g. speak on environment at a national park (e.g. edge of grand canyon, or with mountain in background)

                                BUT can backfire:  Bush Sr. gave nationwide televised speech from desk of oval office, to highlight the nation’s drug problem, he held up bag of crack cocaine and said it was sold by a drug dealer just across the street from the White House.  Turns out drugs are never sold near the white House, so White House agents had to set up a drug dealer by luring him to come to that location and selling to him.

                                Or Bush Jr. flying onto an aircraft carrier in the early days of the Iraq occupation, with banner saying “Mission Accomplished” when years-long winning the peace at the cost of over a thousand more American lives was still to come.


                ALSO presidential administration can bias the information that the media does receive:

                a. withold information—“National security” or “executive privelege”

                                although much information is subject to FOIA challenge, legal appeals can take years, until the issue is moot, such as if the President is no longer President!

                b. delay/stall releasing info –e.g. until after a policy decision (e.g. lack of WMD not known until AFTER Iraq War?) or until after election (budget deficit projections)

                c. distractions/smokescreens:  release tons of information, or stage media events, to get media to cover something OTHER than what they were focusing on. –e.g. is WAR a distraction from a bad economy??? (see films Canadian Bacon or Wag the Dog)

                d. obfuscation:  use vague terms and refuse to clarify

                                e.g. Bush Jr. Social Security reform

                e. distortion:  use misleading or ambiguousterms, figures,

                                e.g. Budget Projections ALWAYS use exceptionally optimistic projections—high tax revenues, strong economic growth, high employment, slow increases in inflation and benefit payouts, etc.


                e.g. Gulf War Pentagon press conference: 80% “success rate” of air-launched missiles, later discovered meant 80% detached from plane!      


                f. LYING!  Kennedy:  U2 flights

                                Johnson: Vietnam, such as Gulf of Tonkin incident and overall success of U.S. forces

                                Nixon: Watergate

                                Reagan: arms to Iran

                                Clinton: Monica Lewinsky

                                Bush Jr.: WMD in Iraq???


                3. NOTE  Ability of presidential administration to manipulate news coverage differs between domestic and foreign policy:

                Presidents can claim whatever they want, and media has no access to any different information, because President can claim all the info must be kept secret as a matter of “National Security.”  Also, the matter is usually complex, not in most of the public’s ordinary knowledge, and it’s not unusual to keep diplomatic and military secrets.  So public is much more trusting overall in areas of foreign policy.

                e.g. Iraq War


                4. NOTE much of this information comes out in the form of LEAKS, but many scholars and journalist estimate about 99% of leaks are intentional:

                a. trail balloons

                b. in exchange for a favorable story from a journalist or just to gain general favor from a reporter

                c. put pressure on foreign governments without saying/doing anything hostile formally

                d. influence official to resign to avoid embarassment of formal request

                e. executive branch officials can release info to pressure president to make a certain decision—e.g. announce aid to country, then president is put in the position of either following through, or committing embarrassment of withdrawing aid.


                D. CONGRESS

President IS the top political agenda-setter in the United States:  determines which political issues receive top priority in Congress and public discussion (due to prestige and media)—e.g. Clinton Universal Health Care proposal, Bush Social Security changes.

This is powerful in itself.


                BUT President can’t accomplish ANY domestic legislative agenda without passage by Congress!

                Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States . . .”

                Article I, Section 7:

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. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

NOTE: VETO  Power: Article I, section 7—"Every Bill which shall have passed the House Representatives and the Senate, shall, before it become 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 . . ."


                Clinton v. New York (1998)

                President must sign or reject "Bill" not "part(s) of Bill" so Congress cannot grant line-item veto without constitutional amendment.

Note:  Many governors have line-item veto power under their state constitutions or state laws.

                Thus, Congress inserts many “poison pills” into legislation, programs or policies the president dislikes, which president must then choose either to accept, or veto all the stuff the president likes, in order to block what he doesn’t like.


                Congress can of course override vetoes by 2/3 vote of both chambers, but overrides are rare, because members of President’s party don’t want to embarrass the president.



LOBBYING:  President is probably the top lobbyist in the nation.

Obviously if the President’s party controls both chambers of Congress, it’s extremely helpful.


                Presidential Influence on MC’s

                                1.  actual vetoes, or what is much more common, threats to vetoes, to make Congress accommodate in advance (and they usually do)                            2. Lobbying—Pres. and Pres. staff and exec. branch officials lobby MC’s

3. Reciprocal Legislative Support (Quid Pro Quo) for Pres. and MC’s legislative proposals

                                4. accommodation of presidential legislative proposals—remember Pres is primary agenda-setter in Congress.

                                5. pork barrel spending favors—military projects, federal contracts, post offices, courthouses, dams, bridges, roads, jobs, farm support,

                                6. campaigning (or promises to campaign) by Pres. (or VP) for MC’s

                                7. Presidential “coattails”—some (a small number) of people who vote for a pres. candidate also support MC’s of the same party.




1. decline of party affiliation among voters, and rise of candidate-centered campaigns, means MC’s  are less loyal to party than they used to be, and it is not uncommon to vote against party leadership, or even for party leaders to go against president of same party! In fact, it’s a badge of honor now that in campaigns, candidates say “I won’t just tow the party line!  I’ll be independent of my party!”

                i.e. MC’s must satisfy local constituents, not national! And Senate over-represents rural states (because each is guaranteed 2 Senators). . .

                e.g. Alaska, Wyoming, North Dakota have more Senate votes than New York and California put together!  So things like agricultural subsidy programs, etc. can NOT be repealed!

                2. even within parties, there are ideological factions that will disagree with the President.  Attempts by Pres. to be “bipartisan” backfire against core party ideologues in President’s own party!

                3. Party and Committee structure in Congress allows party leaders or Committee leaders to block majority

                                Thus, MC’s representing special interests have a disproportionate power over Congressional policy

                4. Timewise, Congress usually focuses on one policy at a time in lawmaking, so President must wait for Congress to advance agenda.

                5. MC’s have huge incumbent advantage, and so are re-elected as careerists, so they don’t feel the need to rush before the honeymoon period is over, or before the next election cycle begins, or to establish a legacy for a lame-duck president, etc.

                6. Diffusion of Power in Congress allows lots of buck-passing and blame-pinning, with no clear accountability for policies that oppose the President.

                7. Congressional rule-making procedures allow individuals or minority groups to block legislation—e.g. Senate filibuster, it takes 60 votes to impose cloture, so 41 votes allows you to block anything.


                8. Presidential popularity/approval is key:  popular president will be more persuasive in Congress, unpopular Pres. won’t be.


Domestic Budgetary and Economic Policy

President: OMB Office of Management and Budget create budget with projections;

Congress: CBO (Congressional Budget Office) does the same thing;

OMB and CBO often have widely differing budget projections—e.g economic growth rates, inflation rates, revenue projections

GAO (was General Accounting Office, now Government Accountability Office) Congressional agency that officially audits expenditures, so ultimately confirms or disconfirms past CBO and OMB predictions—i.e. it monitors U.S. government revenues and expenditures.


Economic Policy: Federal Reserve Board sets interest rates.  Biggest influence president has on the economy.

                BUT president only nominates, Senate confirms, and then FRB acts independently, with fixed 7-year terms in office.



                CONFLICT  between President and Congress


IMPOUNDMENT Presidential IMPOUNDMENT of budgetary allocations!

                                history: Nixon began to refuse to spend money allocated to programs he didn’t like, so Congress asserted itself:

                1974 Congressional Budget and Impoundment Control Act:  Pres. can “rescind” funds for 45 days for Congress to consider the issue; if Congress does not approve the rescission, the president must release the funds on day 46.




“Privilege” a right to keep communiction in a relationship confidential ; e.g. attorney-client, husband-wife, doctor-patient, priest-penitent.

2 Types of Privilege: Absolute and Qualified (depends on circumstances)


U.S. v. Nixon (1974)

FACTS:  Independent Prosecutor Jaworski and House Judiciary Committee wanted Oval Office Tape Recordings from President Nixon to investigate Nixon's involvement and cover-up of break-in of the Democratic Party Headquarters in the Watergate Hotel.  This information was needed to investigate criminal charges against several Nixon aides.  Nixon released certain of the tapes, including 18.5 erased minutes.  District Court issued a subpoena deces tecum (order to produce documents).  Nixon refused, Supreme Court heard appeal on expedited appeal.


NOTE:  Notice how Nixon could have avoided confronting the Supreme Court:

1. Fire the prosecutor Jaworski, then no prosecution

2. Pardon Mitchell, Haldeman, Erlichman, etc.---then no cases, no need for info!


ISSUE:  May the president refuse to release the tapes under "executive privilege"?



                Pres claims ABSOLUTE privilege on 2 grounds:

                1. Nature of communication between government officials and their advisors requires candor, which will be promoted by confidentiality.

                2. Under Sep. of Powers, president is insulated from judicial subpoena.

                COURT response:  absolute privilege would interfere with constitutional duty of judicial branch to do justice in criminal prosecutions; need for truth in criminal case (and basic rights of the accused) outweighs need for confidentiality.

                RULE:  "We must weight the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.

                Also, here, no claim of military or diplomatic necessity.



WHY have executive Privilege?

1. Need for secrecy regarding military and diplomatic affairs (conduct of foreign policy)

2. informer’s privilege: right of law enforcement officials to withhold identity of informants

3. Generic privilege of intragovernmental documents between public officials and their advisors reflecting policy deliberations (executive officials, legislators, judges, and staff)

                a. shields public from gory details of policy debates, and thus encourages candor during discussion/debate

                b. honors expectation of privacy between decisionmakers and their advisors



CRITICISM of executive privilege:

1. Why not a political Q, and leave it to the impeachment process?

2. Nothing in text of Constitution, especially when compared to the “Speech and Debate Clause” of Article I which expressly gives immunity to members of Congress

3. NO evidence of original intent,

4. Although there was some practice of it early on, and sporadically, no consistent historical claim


If executive privilege,

a. other executive officials?

                b. unofficial advisors (spouse, other family, friends)?

                c. civil cases?

                d. when prosecutor/plaintiff wants the evidence?

                e. when defendant wants the evidence?

                f. Congressional investigation (no criminal or civil procedure, but lawmaking)?



SO, RULE*** Two questions you must ask when considering a privilege:

                a. What is the extent of the privilege—absolute, qualified, none?—i.e. is this relationship of such a special nature that the law should recognize a right to keep communications within the relationship secret?  Eg. Attorney-client?  Or is this relationship just like any other ordinary human relationship—i.e. acquaintance-acquaintance where no privilege applies?

                b. Does the privilege apply here—given the facts, does the privilege protect the information sought—i.e. does the interest in obtaining the information outweigh the interest in keeping the information confidential?  In other words, does the need for secrecy outweigh the need for disclosure.





Technically, the House “impeaches” an official, the Senate “tries” the impeached official.  Analogous to an indictment followed by a jury trial.


Article I, Section 2, Clause 5 (powers of House): “The House of Representatives . . . shall have the sole Power of Impeachment.”


Article I, Section 2, Clause 6 (powers of Senate):  The Senate shall have the sole Power to try all Impeachments.  . . . When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”


Article II, Section 4 (powers of President): “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”


Madison’s notes of the convention, June 2:


Mr. Williamson 2ded. by Mr. Davie moved to add to the last Clause, the words--"and to be removeable on impeachment & conviction of mal-practice or neglect of duty"--which was agreed to.


Scholars and historians generally agree “other high crimes and misdemeanors should be read to mean “other serious wrongdoing.”



                So what ARE the agreed-upon grounds for impeachment?


                1. GROUNDS for impeachment: definition of “high crimes and misdemeanors”

                                a. misapplication of funds (e.g. fraud, embezzlement, misuse)

                                b. abuse of official power (e.g. cover up wrongdoing, knowingly let officials  cover up wrongdoing, use power to investigate opponents, misuse military by starting war for own self-interest)

                                c. Neglect of duty (e.g. fail to enforce laws, ignore duties of office; e.g. only play golf all the time)

                                d. contempt of legislative power (e.g. ignore Congressional subpoenas)

                                e. corruption (bribery, etc.)


*Criminality is neither necessary nor sufficient: 

abuse of power, neglect of duty are impeachable offenses but are not crimes

Jaywalking is illegal, but not grounds for impeachment


Historical precedents:


Andrew Johnson—political impeachment, technically because he fired the Secretary of War in violation of the Tenure of Office Act, but really because he blocked “radical” reconstruction




If you look at Nixon’s articles of impeachment (which would have passed had they gone to a vote), only 1 of the Articles of Impeachment was based on alleged criminal wrongdoing.  (Article I, obstruction of justice, article II, abuse of power, article III, defiance of congressional subpoenas).  Thus, criminality is NEITHER necessary NOR sufficient as grounds for impeachment.





Clinton’s articles of impeachment:  Article I, perjury, article II, obstruction of justice. 

Clinton's defense both factual and affirmative defenses:  "I didn't either, and even if I did, these are not impeachable offenses."


Clinton was acquitted, but Senate didn’t say of WHAT?!!!—because not guilty of perjury, or because perjury (at least in this case) is not an impeachable offense? (or both?--those were his defenses)


                ---Perjury?  Lying under Oath but technically not meeting the legal definintion of perjury? Leaving out key facts under Oath but technically not lying?  Lying about personal matters okay but not lying about criminal matters?


                Thus, Clinton’s impeachment either offers NO historical precedent, or, as some have argued, it re-established the Johnson precedent that impeachment can not be used merely for political purposes.


                2. PROCEDURE for impeachment

                                a. House impeaches, analogous to grand jury indictment

                                BUT self-imposed standard of “clear and convincing evidence” of grounds for impeachment

                                b. Senate tries (2/3 vote), analogous to judge/jury,

                                Chief Justice of Supreme Court presides, BUT Senate has power to make own procedures and overrule decisions by the C.J.





                BUREAUCRACY: people and depts. that admin. the policies and functions of an org. (either govt. or private corp. like UL or MacDonalds)

                Gotten so big over time, that even thought part of executive branch, and constitution creates only 3 branches, called “4th branch.”

                Congress creates and funds these programs (Congress makes the laws (programs); bureaucracy enforces (implements) them.


Law enforcement--e.g. can order security to protect federal officials, investigation and prosecutions of federal crimes) based on “Take Care” Clause in Art. II, section 3.  This is a DUTY:


Art. II, section 3. ”he shall take Care that the Laws be faithfully executed.”


2. Appointment of executive officials WITH CONSENT OF SENATE (Art. II, section 2, para. 2).

Article II, Section 2: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. . . . The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

3. Removal of executive officials:  Myers v. U.S. (1926):  President may remove without Senate Approval executive officers that have been appointed with Senate approval  (need to control negligent, etc. officials).


4. Removal of officials in"independent" agencies: Humphrey’s Executor v. U.S. (1935)

President can NOT remove officers of “independent” agencies.  Quais-legislative and quasi-judicial functions must be free from executive control.




Organization of executive branch (President is only the tip of the iceburg!)

                President, Vice President, Executive Office of the President: 1600 employees,  $200 M budget—direct support staff for President.

15 CABINET departments—MAJOR departments organized by policy area, (Ag. Commerce. Defense, Educ., Energy, HHS, HUD, Interior, Justice, Labor, State, Transp. Treasury, VA, Office of Homeland Security)  heads (secretaries) appointed by Pres/senate confirms.

AND Hundreds of "independent agencies nominated by president and confirmed by Congress for a FIXED term in office, or appointed by bipartisan commissions (EPA, FBI, CIA, EEOC, FCC, Federal Reserve Board, NASA, OSHA, SEC, FAA, IRS, FEC, NTSB, NLRB and government corporations--Postal Service, Amtrack)  Congress/Press thought important to keep these somewhat free from politics

                -e.g. Federal Reserve Board main agency for managing the U.S. monetary system—want to avoid politics for economic stability!


President directs, but only few top positions appointed--rest of 3 Million are CIVIL SERVICE:  NOT elected, not appointed, but instead hired by qualifications, fired only if incompetent.  EX: post office, social security office, etc. 


FUNCTION/PURPOSE: (WHY have?)--Congress DELEGATES some of their lawmaking powers and responsibilities to agencies--efficiency, expertise, avoid political accountability. So what is the extent of the power delegated?


Power:    1. IMPLEMENT Congressional statutes at their discretion (within Congressional statutory authorization and direction of President)

                                EX: IRS implements tax rates sets by Congress, collects taxes, makes sure people pay, etc.

2. Make ADMINISTRATIVE RULES/REGULATIONS which have force of LAW  (e.g. EPA rules; IRS tax regulations, NTSB train and auto safety, OSHA safety guidelines, FAA airport and airplane security—no knife blades, boxcutters, etc.)

BUT limits to this power because (a) Congressional laws override regulations; (b) president can direct (c) courts can review.




                Until 1857, Pres had to answer ALL own correspondence—not even a secretary!

                today, Executive Office of the President, created by FDR   2002:  1,858 employees, $331 Million budget.

                White House Office has several major policy thinktanks that advise the president, but biggest 3:





                increased during JFK/LBJ, so that more direct presidential control over policy

                BUT problems:


a. Groupthink:

                                                Cuban Missile Crisis

                                                Second Iraq War


                b. Decisions constrained

i. previous commitments—treaties, budgets, etc.

                                ii. time—e.g. going after Osama in Afghanistan, etc.



                                “Inner Cabinet:”  State, Treasury, Justice, Defense


                3,000 political appointees:

1. “Executive Schedule” (600 appointees): cabinet secretaries, independent agency heads, deputies of those two groups, 185 ambassadors, 94 U.S. attorneys, 94 U.S. Marshalls. 

2. noncareer senior executives (700 appointees), not subject to Senate Confirmation.

3. “Schedule C” (about 1700 appointees), “executive assistant” or “special assistant” to groups 1 and 2 above, not subject to Senate confirmation.


BUT keep in mind that vast majority of federal budget is NON-discretionary!  50% social security, Medicare, and Medicaid, 25% defense, 12.5% interest payments on debt, and only 12.5% is discretionary programs!


                AND problems getting appointees you want:

                1. Time constraint—within few months of taking office, so pressured to rush nominations

                2. Politics: must balance geography, ideology, race, gender, to appease interest groups, party loyalists and constituents, as well as be confirmable by majority of Senate, so can’t be overly ideological, and must meet satisfaction of Senate Committee Chairs

                3. lack of qualified people for the position, willing to take the position (leaving private sector is big decrease in money, especially for top executives!) (also unwilling to be publicy scrutinized and go through possibly tortuous confirmation process).


                AND:  cabinet departments and agencies can be slow to implement policy, or even NOT!

                1. private sector individuals (former managers and executives) must adapt to political constraints of public sector

2. cabinet officials “go native”—end up supporting lifetime civil servants and career bureaucrats and their interests

3. Many appointees just want the position for prestige, or to cash in later for lucrative lobbying or consulting jobs, and don’t care

that much about implementing specific policies

4. These specialized, highly trained and experienced experts may strongly disagree with President on policy decisions!

5. SOP—standard operating procedures among lower-level civil servants are so ingrained, that they override contrary policies ordered from above, and removing, moving, or disciplining career civil servants is difficult and time-consuming, especially because extensive government rules govern ability of high-level executives to remove or discipline lower-level civil servants

6. fragmentation of policy makes it difficult to have coordinated

                a. aid to poor: 10 departments and agencies administer more than 100 different programs!—e.g. TANF, food stamps, subsidized housing, SS, SSI, Medicare, Medicaid, job training, school lunches, child day care, etc.        

                                b. National Security:  Office of Homeland Security is SUPPOSED to coordinate FBI, CIA, INS, ATF, Coast Guard, Defense Department, DEA, Marshal’s Service, State Department, Customs, IRS, Secret Service, FAA, NTSB, etc.

                                c. Cheese pizzas are regulated by the FDA, but pepperoni and sausage pizzas regulated by Department of Agriculture.

                7. Congress must authorize, staff, and fund the department/agency at appropriate level for it to implement the policy wanted by the Pres!

                                FDA—quicken pace of drug approval, or inspect more meat-packing facilities

                                EPA—inspect suspected polluters

                                INS—update on residence locations


                                IRS—collecting back taxes

                                NPS—deteriorating parks

                                NIH, CDC—research bioterrorism

                                FAA—baggage x-ray machines

8. IRON TRIANGLES (SUBGOVERNMENT)--three-way stable alliance between an agency, a congressional committee, and an interest group—all work for each other’s mutual benefit, “IRON” because hard to stop politically, “SUBGOVERNMENT” because largely

have control over policy in that policy area, so act like a separate government in that policy area. Interest group "CAPTUREs agency.

                EX: Department of Defense, Armed Services Committee, Defense Contractors—lost of unnecessary hi-tech weapons contracts

                EX: Forest Service, Agriculture Committee, Lumber Companies—below-cost lumber and free roads to timer industry

                EX: Bureau of Land Management, Agriculture Committee, Cattle Ranchers—below-cost grazing fees, even if environmentally bad

                EX: Treasury Department, Committee on Banking, Finance, and Urban affairs, and banking and insurance industry---favor creditors




1. Nominate Federal Judges:

                But Constitution says must get Senate to confirm judicial nominees.  Most of the time, the President gets his way—even Clarence Thomas was approved 52-48.

                BUT once confirmed, are on court for life!  So putting a few justices on the Supreme Court means shaping the outcome of Supreme Court cases for several decades, which means shaping the face of U.S. constitutional law for possibly centuries!  This is why many scholars have suggested the power to appoint justices to the Supreme Court is one of, or perhaps even the most profound power any President has!



2. Power to Pardon:


                Article II, section 2: "he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."


                Murphy v. Ford  (U.S. District Court case)

                                FACTS: attorney brought suit challenging President Ford's pardon of President Nixon

                                ISSUE: did Pres. Ford have constitutional authority to pardon former Pres. Nixon?

                                Holding: Yes.

                                REASONING:  purpose of pardon to "restore the tranquility of the commonwealth" after a "season of insurrection or rebellion; Presidential Watergate scandal was akin to a "season of insurrection or rebellion.  Fact that no indictment or conviction irrelevant.  RULE: Pardoning power is unlimited, except in cases of impeachment. "The power extends to every offense known to the law, and my be exercised at an time after its commission, either before legal proceedings are taken, or duing their pendency, or after conviction and judgment  . . [and] cannot be fettered by any legislative restrictions."


                Rule: President has absolute power to pardon individuals for committing FEDERAL offenses.  Legally, its as if the person never committed the crime.  President's power to pardon can involve:

                                1. All or part of penalties or sentence

                                2. ANY time after the commission of the offense –before, during, or after filing of charges,  trial, conviction, sentencing

                                3. nomatter how severe the crime or notorious the offender

                                4. single person or class of persons (Washington: Whiskey Rebellion participants; Carter: Vietnam draft evaders

                                5. no formal procedures required (unconstitutional)

                                6. EXCEPT impeachment.





Immunity from Civil Lawsuits regarding official executive conduct


Nixon v. Fitzgerald (1982)

FACTS:  Nixon fired Fitzgerald, civilian Air Force employee, in retaliation for whistleblowing on govt. waste in Air Force plane procurement.  Firing arguably rguably violated federal law, and Fitzgerald sued Nixon for civil damages.    Lower courts rejected Nixon's claim to absolute immunity, and Nixon appeald.

ISSUE:  Immunity from civil lawsuits based on official conduct (even if it violates laws)?


                REASONING:  Presidency is unique: Because of high visibility of office, and far-reaching consequences of actions, President could be target for countless lawsuits.    Such vulnerability would detract from ability to perform official duties, to harm of president and the nation.  So, ABSOLUTE immunity.  BUT, since need for immunity is to protect president's ability to perform official duties, scope of immunity limited to official responsibilities.  Qualified immunity would still leave president open to lawsuit for every official action, and impeachment remains safeguard against abusive president.  Besides, press scrutiny and public opinion (need for re-election) will reduce presidential lawbreaking.

                RULE: the President has absolute immunity from lawsuits for acts within the "outer perimeter" of his official responsibility.

                DISSENT:  1. President may be unique, but that doesn't justify absolute immunity.

                                2. no history or record of president being targeted by lawsuits

                                3. possibility of distraction outweighed by need to ensure justice.



Clinton v. Jones (1997)

 FACTS:  Paula Jones sued Clinton for sexual harassment, alleging Clinton (while governor) made sexual advance on Jones, she declined, and then she suffered negative employment consequences.  District court refused to grant immunity, but postponed trial until after the president's term in office ended.  Both Clinton and Jones appealed.  App. Crt. Ruled no postponement of trial, and Clinton appealed.

ISSUE:  Should private lawsuits against the president be deferred until the president is out of office?


REASONING:  Immunity for official conduct is unlike immunity from personal conduct: Private lawsuits offer no threat to, or reduction of, the constitutional powers of the President, even if the lawsuits are won.  Also, no history of this kind of potential abuse, and even if it occurs, frivolous lawsuits are easily dismissed at the pleading stage