1- The executive power Flashcards
Lecture 1 - Article II, section 2,3 & 4 The executive Power (the Powers of the President)
the most important thing for US history ?
constitution
Where is the presidential power in the Constitution ?
The presidential power in the Constitution is mentioned in the 2nd article.
1st article deals with the power of
1st article deals with the power of the Congress (=House of Parliament)
⇒ Checks and Balances
When founding fathers gathered ? Where ? For what ?
When founding fathers gathered in Philadelphia in the summer of 1787 to write the constitution of the US,
the most difficult and consequential question founding fathers had to answer
the most difficult and consequential question they had to answer was that of the executive branch.
Why American war of independance ?
The main reason why the American war of independence had been fought was that Americans no longer wanted to be controlled by a British King who could decide everything for them.
Articles of Confederation date + results
1781
the First American Constitution : the Articles of Confederation of 1781 didn’t even create an independent executive power as Americans thought that having a president even in a democratic system was already too close to having a king.
⇒ In 1781 Congress was given both executive & legislative powers and responsibilities.
Inefficency of the system why ?
Congress could neither collect taxes nor protect people efficiently made it obvious that an independent executive power was indeed necessary in order for the federal government to be able to do its job.
⇒ The executive power had become a “necessary evil”.
As a consequence, the drafters of the Constitution of 1787 had to strike a delicate balance.
They had to create an executive power that would be powerful enough to allow the government to function efficiently BUT not so powerful as to threaten the democratic nature of the political system & allow the president to turn into a king.
article 2 of the American constitution
created the Presidency that could be controlled by Congress & by the judiciary = System of Checks and Balances.
l’ordre hierarchique (constitutionnel)
the Constitutional pecking order
the Constitutional pecking order
article 1 for Congress & article 2 for the Executive
Is not a coincidence. Congress nor the presidency was supposed to be a determinant/dominant institution of the American political system.
Today American President =
Today the American president is often described as the Leader of the free world and the most powerful on earth.
Arthur Shlesinger Jr.
went as far as to describe the American presidency as an imperial institution rather than a democratic one.
The imperial presidency, 1973 Arthur Shlesinger (1917-2007)
the main paradox of the American presidency
it is an institution that when it was created was not supposed to be the leading force in its own country but is now the most powerful political institution in the entire world. And YET, Article 2 of the constitution hasn’t changed. Officially speaking, the powers of the American president are the same today as they were when the presidency was created in 1787.
The main question one has to answer when studying the article II of the American Constitution
how has the same text been able to produce the weak president of the 19th century & the leaders of the free world of the 20th & 21th century ?
Article 2 is made of 4 sections.
Section 1 is mainly about the way the President is elected
Section 2, 3 & 4 describe the powers and the responsibilities of the president. They will allow us to understand how the presidency evolved even though the constitution has remained the same.
War power : the president is
The president is the Commander-in-Chief of the Army and the Navy of the United States.
The main reason why the Founding Fathers decided to make the president the Commander-in-Chief
they wanted this role to be played by a civilian rather than a member of the military because they didn’t want the country to turn into a military dictatorship.
But even though the president was made commander-in-chief, the drafters of the constitution did not want him to be able to make the actual decision to go to war as they knew that Kings and dictators often used war to increase their power and curtail civil liberties
Who has power to declare war ?
only Congress was given the power to declare war
What can only the president decide? War powers
the president could only decide how to conduct the war once the decision had been made by Congress
Constitution, what is opposed to it ?
And YET all but five of the numerous wars (more than 200) was fought by the United States were started not by a declaration of war by Congress but following a decision made by the President which seems to fly in the face of what the constitution says.
wars declared by declaration of war by Congress
Since 1789, Congress has declared war 11 times, against 10 countries, during five separate conflicts:
Great Britain (1812, War of 1812);
Mexico (1846, War with Mexico);
Spain (1898, Spanish-American War, also known as the War of 1898);
Germany (1917, World War I);
Austria-Hungary (1917, World War I);
Japan (1941, World War II);
Germany (1941, World War II); I
taly (1941, World War II);
Bulgaria (1942, World War II);
Hungary (1942, World War II);
Rumania (1942, World War II).14 In each of these 11 instances, the President appealed to Congress for authorization either in person before a Joint Session or in a written request.
5 wars
War of 1812
War with Mexico
Spanish-American War (war of 1898)
WW1
WW2
Difference btw congress & president
an assembly of 535 people VS president = 1. BUT when you have to take a quick decision, 1 person is easier.
Why is this change made possible ?
made possible by the necessity for quickness in the decision-making process.
Exemple, Civil War
→ When the Civil War started in 1861, Congress was not even in session. And, Lincoln, the president, had to make the decision on his own. This presidential advantage was made even more obvious by the emergence of the atomic bomb. War had now become a matter of minutes and waiting for Congress to declare it simply became impossible.
As it is the case with many other situations, the president was able to use the fact that he/she is 1 person and only has to convince himself. Whereas Congress is made of 535 people which necessarily make the decision-making process slower and longer.
⇒ Congress tried to react by passing the War Powers Act in 1973
War Powers Act ,
1973
The President can commit the military forces in 3 cases only :
If Congress votes a declaration of war
If he has been authorised by a law
In an emergency situation
What do specialists think about War Powers Act ?
many specialists of the American presidency think that this law actually strengthened the role played by the president by making it official that he could actually start a military operation without a declaration of war by Congress
Section 2 treaties quote
the President “shall have powers by and with the Advice and Consent of the Senate to make treaties provided two third of the Senators present concur”.
the Constitution about the treaties
the Constitution made it clear that no treaties involving the United States could become official without the approval of the super-majority of the Senate.
Tool created by presidency to contournate the rules of constitution about treaties?
the Presidency created a tool known as “executive agreements” which are basically treaties. They are signed between the US President and a foreign government.
YET as they are not named “treaties” they do not need the approval of the Senate and the President is now able to deal with other nations without the consent of Congress.
Legitimacy of Executive Agreements when ? by who ? how?
The Supreme Court legitimised this practice as soon as 1937 in the United States v. Belmont decision, and gave executive agreements the same legal values as treaties.
Why is the President so powerful ?
⇒ These 2 evolutions : war being decided by the President & Treaties being replaced by executive agreements help explain why the President became so powerful.
the Constitution shared the responsibility for foreign policy decisions between VS Now
While the Constitution shared the responsibility for foreign policy decisions between the Congress and the President, the President is now almost exclusively responsible for the foreign policy of the US.
And since the US has become over the years the most …. so the President
And since the US has become over the years the most powerful country in the world diplomatically and militarily speaking,the President now leads the most powerful army and the most influential diplomacy in the world.
Change between what constitution wanted & reality is recognised :
The change between what the Constitution wanted (foreign policy shared by Congress and the Presidency) and reality (the President is the leader of the country’s foreign policy) was recognised by the Supreme Court in 1936 in the United States v. Curtis-Writght decision.
“sole organ of American foreign policy
The Supreme Court described the president as the “sole organ” of American foreign policy. As a result, the president is widely recognised today as the chief of American foreign policy even though the Constitution doesn’t make it clear that it should be his/her role.
Supreme court : say as much as you can !
Supreme court = 9 juges nommés À VIE par le Président. C’est le dernier recours dans le droit américain. Elle examine des problèmes juridiques qui n’ont pas été résolus par des Etats ou dont les plaignants n’ont pas été satisfaits par les États.
Pour prendre ses décisions, la Cour supreme s’appuie sur la constitution. The supreme court is the ultimate interpreter of the constitution.
Si on est nommé juge de cour suprême soit démissionne soit mort.
Ex : président démocrate avec 9 juges qui sont soit majorité républicaine soit majorité démocrate. Selon leur affinité politique + ou - simple de travailler avec eux pour le président. Fin mandat Obama, choisir un juge a été bloqué le plus possible pour pas qu’il choisisse un démocrate. Selon son parti, on espère que juge meurt ou non
Actuellement, cour suprême = républicaine
Décisions de la cour suprême viennent toujours d’un cas qui leur est présenté.
Nominations
It is one of the most important powers of the American president. All Federal Judges including supreme court justices (= juges) are nominated by the president and have to be confirmed by a simple majority of the Senate.
Impact of the President’s choice of the Supreme Court Justices
example
this gives the president the opportunity to influence the fate of the US for decades.
→ Ex : Donald Trump’s decision to nominate Nell Gorsuch (2017), Brett Kavanaugh (2018) and Amy Coney Barett (2020) to the Supreme Court (=SC) had a direct influence on issues as important as abortion rights or religious freedom.
Nomination : what hasn’t changed and what has changed ?
If the nomination power itself has not really changed since 1787, the increasingly important role played by the SC made the president’s rights to nominate justices more important than it has ever been.
Grace présidentielle
Finally, section 2 gives the president the right to pardon people, this power might be the strangest of all. Indeed, pardoning people was typically a royal prerogative and even though the founding fathers wanted to avoid the president becoming a king, they still gave him/her the power to pardon as a check on the judiciary.
Legislative power
100 Us senator
435 representative
⇒ Us congress: making laws, approving federal justices, passing budget, declaring war
Executive power
President, vice president = enforcing the law
X cabinet
Defence, treasury, homeland security
Judicial power
Federal district court, Us supreme court
Congress
House of Representatives (485)
+ Senate (100 : 2 per State)
9 justices of Supreme Court
Chief Justice John Roberts. Chief Justice John Roberts. …
Justice Clarence Thomas. Associate Justice Clarence Thomas….
Justice Samuel Alito. …
Justice Sonia Sotomayor. …
Justice Elena Kagan. …
Justice Neil Gorsuch. …
Justice Brett Kavanaugh. …
Justice Amy Coney Barrett.
Justice Ketanji Brown Jackson
Section 3
Section 3 makes the fundamental role of the American president explicit.
“He shall take care that the laws be faithfully executed”.
Take Care Clause
This clause is known as the “take care” clause.
It is a useful though obvious reminder that the president is the leader of the Executive branch.
And that this branch was created to make sure that the laws adopted by Congress would be executed and become a reality.
Section 3 also focuses on
the roles played by the president in the legislative process. Eventhough it seems counterintuitive to say that the president has a legislative role (Congress, not be executive is supposed to adopt the law, it makes perfect sense if one takes into account the notion of Checks and Balances.)
Each of the 3 branches is responsible for its own power. BUT
Each of the 3 branches is responsible for its own power.(power of the law is for Congress)
BUT all of them have to be able to control one another.
→ Congress adopts the law which is what the legislative does BUT the executive can and should check Congress’s job
State of the Union
First the president shall from time to time give to Congress information of the state of the union.
The State of the Union Address which once a year allows the president to go to Congress and deliver a speech about the state of the Country.
Since the beginning of the 20th century however, the State of the Union has become more than just a speech about the state of the country.
It has become an opportunity for the President to propose his own legislative agenda to Congress and ask the legislative branch to work on it.
⇒ shift : the President is not supposed to make the law but gives directions to Congress
In other words, even though Congress still adopts the laws, or refuses to do so, many of these laws are actually proposed by the President.
Clinton Rossiter
1950s described the American President as the country’s “chief legislator” which is in this case, an oxymoron.
Even the federal budget
Even the federal budget, which is probably Congress’s most important prerogative (the power of the purse) has been proposed by the presidency since beginning of the 20th century
Recommendations
the capacity of the American President who give Congress a legislative agenda = logical consequence of the rest of section 3 known as the “Recommendations clause”
→ the President can “Recommend to Congress’s consideration such measures as he shall judge necessary and expedient”.
→ The president can also influence the legislative process by using his veto (cf article 1 section 7) which forces Congress to gather the support of two-third of its members in each House (House of Representative & Senate), in order for a bill to become a law.
⇒ The president’s veto is such a strong weapon that sometimes the mere threat of the president using it is enough for Congress to modify a bill or even abandon it all together.
→ Section 3 also gives the president the right to convene (=réunir) Congress in exceptional circumstances
right to convene (=réunir) Congress in exceptional circumstances example
Lincoln during the Civil War, and to receive ambassadors and other public ministers
⇒ which means that only the President has the right to recognise the existence of a foreign country as the Supreme Court made clear in 2015 in the Zivotofsky v. Kerry decision. When the SC declared that only the President had the right to recognise Jerusalem as the capital of Israel.
Article II, Section 4 (Impeachment)
quote
“The president, Vice President all civil officers of the US shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors”
Impeachment created by who ? why ? When ?
Impeachment was created by the framers of the Constitution as the Ultimate safeguard against the president becoming a dictator. If the President or any member of the United State’s government clearly violates the law, then, Congress can remove them.
(But impeachment can also be for someone from the Government, not only for the president)
Where is the impeachment procedure itself described?
The impeachment procedure itself is described in Article I. (because it concerns Congress).
impeachment procedure
→ First, the accused has to be impeached by a simple majority in the House of Representatives. If this happens then the Impeachment retrial takes place in the Senate. The trial is presided over by the Chief Justice of the Supreme Court and in order for the accused to be convicted, they have to be found guilty by two-third senators. Since the Senate is not the tribunal, the only possible sentence is to be removed from office. BUT a Criminal trial in a traditional court of law is possible after the person has been removed from office.
Use of Impeachement :
No American President has ever been convicted or removed from office.
Both Bill Clinton in 1998 and Andrew Johnson in 1867 were impeached by the House of Representatives BUT were not convicted by the Senate.
Richard Nixon resigned in 1974 before the House of representative could impeach him following the Watergate scandal.
Trump was impeached by the House of Representative in 2019 on two articles : Abuse of Power and Obstruction of Congress. He was not convicted by the Senate.
BUT He was impeached again in 2021 for Incitement of Insurrection against the US Government. The House of Representative voted against to impeach him which made him the first President to be impeached twice, but he was again acquitted by the Senate.
Inherent Powers def
(= powers not explicitly written in the Constitution)
These are called un-enumerated powers or implied powers for Congress and Inherent powers for the President.
3 inhérent powers
Bully pulpit
Unilateral powers :
Executive privilege
Bully pulpit
the idea that the President, unlike Congress or the Courts, has the unique capacity to communicate directly with the American people and use the prestige of his office in order to obtain their support.
Unilateral powers
administrative tools created by the Presidency in order to shape public policy without going through Congress. They include executive orders, executive agreements, statements of administration policy, signing statements etc..
.The Executive privilege
hich is the idea that the President has the right ot keep some information seret even from Congress and the COurt in order to do his job efficiently. It was recognised by the Supreme COurt in the 1974 United States V. Nixon decision
Checks and Balances
As powerful as he has become, the American President is still constrained by the system of Checks and balances. BUT these are a two-way street (=marche dans les deux sens) : the president can be controlled by the other two branches but he can also control them.
Check and balances : two way-street
The president can control Congress through his veto power that he can use to prevent a bill from becoming a law.
BUT Congress can control the President by overriding his veto with a two-third majority in each house or by impeaching him if necessary
The President can control the judiciary by nominating federal judges. But Federal Courts can review the Constitutionality of Presidential decision.
