Essay plans - The executive Flashcards
What are the enumerated (formal) powers of the President?
PARDONS/COMMUTE SENTENCES
Obama pardoned 212 people and commuted the sentences of 1,715.
In 2017 – Trump pardoned Joe Arpaio, the controversial former sheriff of Maricopa
County, Arizona, who critics have long accused of violating the legal and constitutional rights of Hispanic citizens - attracted bipartisan criticism + undermining the rule of law and even of endorsing racism.
ACT AS C-IN-C
Their constitutional position as Commander-in Chief clearly implies a responsibility and power to order military action without authorisation in cases of self-defence – Trump ordered targeted drone strike on Qassem Soleimani in Jan 2020.
Executive Agreements - International agreement made without senate consent – previously used for smaller technical agreements – have begun to replace treaties since WW2.
94% of international agreements between 1939-1989 were EAs.
VETO LEGISLATION
Trump vetoed a bill in 2020 that would terminate AF action in Iran that hadn’t been authorised by Congress.
Obama vetoed JASTA in 2016.
What are the implied powers as chief executive?
EXECUTIVE ORDERS
Written orders from the President to gov officials/agencies, informing them how they should go about enforcing the laws passed by Congress.
Have the full force of the law and recorded in the Federal Register.
They are usually upheld by the SC and if congress dislikes them their only option is to remove their funding.
Trump used one to re-open process of constructing Keystone XL pipeline – controversial for environmental reasons – Obama used an EA to block it in 2015 – the long-term effect of all executive orders can be limited - Obama issued 30 orders that amended or revoked existing ones.
PROSECUTORIAL DISCRETION
Power to determine when to enforce the law – which to prosecute and leave.
Due to limited resources, it’s difficult to prosecute every crime.
Obama used it to influence immigration policy - 369,000 people deported in 2013 – Obama argued that it was his power to decide which of the remaining 11m to deport next – he introduced the Deferred Action for Parental Accountability in 2014 which allowed immigrants with US born kids to apply for work permits.
SIGNING STATEMENTS
When signing a bill, the President can issue a stamen giving their opinion/interpretation of the law.
These have sometimes been used to claim that certain provisions infringe executive power, and consequently refuse to enforce them.
Obama issued 37 – Bush challenged 1,200 provisions of leg.
National Defence Authorisation Act (2014) – Obama challenged 20 sections.
What are the limitations on presidential power?
JUDICIAL CHECKS
SC can declare president’s actions to be unconstitutional.
Rasul v Bush (2004) – foreign nationals could invoke habeas corpus in GB because it’s
effectively US territory.
Hamdan v Rumsfeld (2006) Bush tried to order new commissions to try detainees at GB – SC said he didn’t have this power. This lead to the Military Commissions Act (06) and this was deemed unconstitutional by Boumedine v Bush (2008).
CONGRESSIONAL CHECKS
Overturn veto – Justice ASOfTA (2016).
Power of purse – if funding refused shutdown (e.g. 2018 fed gov shutdown for 35 days after Trump and Congress unable to agree on funding for border wall).
Impeachment – Trump 2019 but found not guilty by Senate in 2020.
UNPOPULARITY/LAME DUCK
Nearing the end of term and reached end of term limits.
Obama won the House’s support 32% of the time in 2011 and only 21% by 2013.
Obama approval rates: 57% (2009), 43% (2014).
Increasing partisanship – Senate Jud Committee – Kavanaugh got no democrat votes, Aff Care Act (2010) passed with no Rep votes.
What is the role of the Vice President?
SENATE
President of senate, casts the deciding vote in a tied senate – Mike Pence cast 9 in first year.
VP Dick Cheney cast 8 deciding votes.
VP Dick Cheney cast the deciding vote on the Jobs and Growth Tax Relief Reconciliation Act (2003).
Can influence the Pres in policy making.
President Bush was unexperienced in foreign policy, therefore VP Dick Cheney, who had previously been Secretary of Defence, made frequent media appearances to build support for Iraq, Afghanistan and Guantanamo Bay.
Obama used Biden’s advice to push for the New START Treaty before the end of 2010.
SECOND IN COMMAND
Becomes president if president dies/resigns/is removed.
25 th Am – becomes acting president when pres can’t fulfil duties e.g. in 2007 VP Cheney became president for 2 hours whilst Bush sedated for medical procedure.
President Lyndon Johnson took over from President John F. Kennedy when he was shot and killed in 1963.
However, it is rare that something happens to the President and the VP needs to take over.
BALANCE THE TICKET
Party tries to attract more voters by choosing a VP candidate that will appeal to different voters than the President, different region, age, gender, factions etc. – this has led to criticisms of the VP’s importance in office
E.g. Joe Biden was 65 and he balanced Obama’s youth who was 47, her served in the Senate for 36 years against Obama’s 4 years and he also brought a lot of foreign policy expertise to Obama’s little experience.
How has the role of VP changed?
NATIONAL SECURITY
It would be dangerous to keep the VP in the dark about national security issues, because they could become President overnight.
In 1945, Truman became President after the death of Roosevelt – had only met twice and Truman knew nothing of nuc development. He had to learn everything overnight – didn’t know about the Manhattan Project.
Richard Nixon was often labelled as the ‘first modern VP’
He was invited to cabinet meetings, advised President Eisenhower on foreign policy,
he was able to chair meetings with the National Security Council when Eisenhower
was absent, managed the executive branch when Eisenhower had a heart attack in
1955 and a stroke in 1956.
Walter Mondale was the first VP to be shown the presidential briefing (Carter’s VP).
INTERNATIONAL ROLE
Foreign relations have become increasingly important and complicated so some important visits can be delegated to the VP.
Obama said he was “looking for somebody who can help me govern”. Joe Biden was the chair of the Senate Foreign Relations Committee, and he has significant involvement in foreign policy - Biden made 8 trips to Iraq between 2009 and 2012 to oversee the handover of power to the Iraqi government.
INEXPERIENCED PRESIDENTS
Many Presidents have limited experience of working on national issues such as foreign policy, therefore they use the VP for advice.
Joe Biden was Senator for 36 years, Obama only served for 4 years.
In 2012 mid-terms, Dems suffered losses. Biden advised Obama to get the Senates approval for the START Treaty (agreement between USA and Russia to halve the number of nuclear missile launchers) before the end of the term, because in the new year the Dems would have a smaller majority, meaning it would be difficult to ratify.
Biden had as many as 50 meetings and phone calls with senators to persuade approval - In 2010, Senate approved the treaty.
How much control is there over the federal bureaucracy?
PRESIDENT
The president can appoint heads of departments and agencies, so they try to appoint leaders who share their views e.g. Trump 2017 appointed Scott Pruitt as new Administrator of EPA, he has scrapped Obama-era rules, 2018 budget proposed to cut funding for EPA from $8.2bil to $5.7bil, however, Trump has led influence over thousands civil servants who work for the Agency.
President can threaten to reduce agencies’ budget, can veto appropriations bills, they can also issue executive orders – instructing department heads to make changes in how laws are being executed.
President can remove leaders if they have done something they dislike, and they can appoint someone else (with Senate consent). In 2010, Obama dismissed General Stanley McChrystal after criticised Obama’s foreign policy in an interview.
CONGRESS
This is the main source of checks on the federal bureaucracy – Congress have the power to establish, merge or abolish departments and agencies.
Congress has reorganised the federal bureaucracy on a number of occasions – Eg. 2002 – when Congress extracted 170,000 current federal government employees from 22 different agencies (Treasury, Defence and Commerce, Health) and merged them together to form the new Department of Homeland Security.
Congress can also use it’s ‘power of the purse’ to finance the various departments and agencies within the federal bureaucracy.
They can also use their power of oversight to investigate federal departments and agencies – this is usually in the policy specialist standing committees in both the House and the Senate.
JUDICIARY
They can rule on whether the bureaucracy has acted consistently with the constitution and law, e.g. Utility Air Regulatory Group v. EPA (2014) SC struck down EPA regulations restricting greenhouse emissions because they arguably exceeded the agency’s power/authority under the Clean Air Act.
What are the problems with the federal bureaucracy?
INNEFFICIENT
Having so many agencies concerned with their own interests can result in some issues being the responsibility of numerous department and agencies, 2011 - 12 agencies dealing with exports, 5 dealing with housing.
Veterans Health Administration scandal in 2014 – they are responsible for providing medical care for US military veterans, but 40 died waiting for care in Phoenix – led to investigation, managers had told staff to manipulate the data to make it look like everyone was meeting targets.
OVERISIGHT
Due to the large number of federal agencies, it is hard to keep track of everyone. Police-patrol oversight – constant supervision of federal bureaucracy to prevent mistakes before they happen, however this is very expensive and time consuming.
Fire-alarm oversight – more common, scrutiny in response to concerns raised. Regarding the Veterans scandal 2014, perhaps if more police-patrol oversight had been used, this scandal could have been avoided.
IRON TRIANGLES
Pressure groups have too much influence.
Relationship between pressure groups (interest), executive agencies and Congress. Interest groups can donate and support members of Congress, who can grant funds and power to executive agencies, who then make decisions with the interest’s groups in mind.
Can lead to ‘clientelism’ – federal agencies become dominated by the ‘clients’ they are supposed to be regulating.
Meredith Attwell Baker (FFC Commissioner) approved a controversial merger between NBC-Universal and Comcast, 4 months later she resigned from the FCC and joined Comcast.
What makes up the Federal Bureaucracy?
INDEPENDENT AGENCIES
Exist outside of the 15 departments and are any agencies that are no in the executive department e.g. NASA, CIA, EPA.
Sometimes grow so much that they are given cabinet positions, some even become executive departments e.g. in 1990, the Veterans Administration became the Department of Veterans Affairs.
Write most of the regulations that effect the implementation of policy, so have a large impact on policy.
Should be able to write the most suitable regulations due to being experts in their policy area.
Increases government efficiency because by the federal bureaucracy writing regulations Congress can focus on the most important broad policy areas instead.
INDEPENDENT REGULATORY COMMISSIONS
These are agencies that regulate particular industries and groups e.g. the FCC (Federal Communications Commission), who regulates communication by radio, TV, wire, satellite and cable and the Equal Employment Opportunity Commission who investigates and enforces workplace discrimination laws.
They are created by Congress to be free of political interference, they are usually led by a board of 5 to 7 people. These members are appointed by the President.
Term lengths are staggered so members are not all chosen at once and most boards are required to have party balance e.g. the FEC (Federal Election Committee) cannot have more that 3 members of the same party.
EXECUTIVE DEPTMARTMENTS
The 15 departments in the executive branch.
In 1989, the Department of Veteran’s Affairs was created.
In 2002, the Department of Homeland Security was created as a response to 9/11.
They are headed by cabinet members e.g. Betty DeVos is Sec of Education.
Cover the 15 most important policy areas in the executive branch, therefore they can have a large impact on the US.
Could be seen to be going beyond the power of the federal government because originally there were only 3 executive departments and the federal government was supposed to have a limited role, especially in policy areas that were supposed to be left to the states, such as education.
What are key features of the cabinet?
APPOINTMENTS
Many Presidents try to recruit form Congress, but most do not want to five up their seats to a less secure position. However, Trump persuaded 3 incumbent members to join his cabinet in 2017.
State governors have executive experience and are better suited to running a large federal bureaucracy than former legislators.
2 former governors joined Trump’s cabinet in 2017, including Rick Perry of Texas.
Some appointed from America’s top universities.
Obama appointed Steven Chu in 2009 to be Sec of Energy – had been a physics professor. Replaced by MIT physics professor Ernest Moniz in 2013.
MEETINGS
Used to check on leg going through congress that they are particularly interested in.
Bush used a meeting gin 2002 to push for congressional action in Iraq.
Obama used a cabinet meeting in 2015 to discuss his policy agenda for Congress.
Presidents can use meeting to encourage cabinet members into action.
Obama used meeting in 2014 to encourage Defence Sec Hagel to release prisoners from GB.
Obama used meeting in 2013 to discuss implications if upcoming federal gov shutdown.
IMPORTANCE
Grants “all executive power” to president.
No doctrine of collective responsibility – he is completely in charge.
Prof Anthony King: The president “is the meeting”
Cabinet officers are not political rivals.
The cabinet is not a stepping stone to presidency – as discovered by Clinton in 2016.
The last person to step from cabinet to presidency was Herbert Hoover in 1929.
Cabinet members have other loyalties.
Bush required all members to spend several hours a week working on WH compound to manage issues collectively, which annoyed many officers.
What is the composition of EXOP?
WHITE HOUSE OFFICE
Includes all the most senior advisors and staff, their offices are based in the WH
Includes Chief of Staff – advises President on all important issues and manages the presidential staff.
Press secretary – makes public statements on behalf of the President to reporters.
White House Counsel – advises President on all legal issues concerning the administration.
They often have daily contact with the President - Presidents often appoint trusted allies from the campaign for these jobs – e.g. David Axelrod was Obama’s Chief Campaign Advisor in 2008, Obama appointed him as Senior Advisor.
NATIONAL SECURITY COUNCIL
Established in 1947, draws together information about various departments and agencies that have a role in national security, and then presents the president with clearer options.
This includes the President, VP, Secretary of State, Defence and Energy.
Heads of military and the director of national intelligence can also attend.
President can appoint their own National Security Advisor and can invite additional members when they feel it is necessary.
POLICY CZARS
Unofficial term used by the media to describe any senior advisors that are given responsibility over a particular policy area.
They can be controversial if they appear to have been given a considerable amount of responsibility, because few of them require conformation by the Senate.
Obama appointed several ‘policy czars’ and was accused of centralising all policy making in the White House, because Congress has far less oversight on the unaccountable advisors.
They arguably undermine the role of the Secretaries of State, in 2009, Obama appointed an Energy and Climate Czar (Carol Browner) but there was already a Secretary of Energy (Steven Chu).
Presidents argue that these positions are necessary because many issues cut across a number of departments and agencies therefore someone should be appointed to coordinate everything and ensure that everyone is on the same track.
In 2014, after the rising fears over the Ebola outbreak, Republican wanted Obama to appoint an Ebola Czar, so he did – Ron Klain.
How can the President persuade?
VP
All of the last seven VPs have been members of Congress.
They can be persuasive in Congress – Biden was key on big-ticket issues such as the economic stimulus package, tax relief and debt ceiling crisis in 2011 because he new lots of congressmen who looked up to him.
OTHER PEOPLE
Cabinet officers: deployed by WH to talk with congress members – Bush used Education Sec to sell education reform to Congress in 2001.
Party leadership: The president can work through party leadership in Congress.
Members of the Office of Leg Affairs.
PERKS
Pres can make personal phone calls.
Can go to Congress to meet with select group of members
How are checks and balances on the President effective?
CONGRESS
Congress can reject the President’s legislative proposals, treaties and appts.
President Obama’s DREAM Act (2010), which would have given citizenship to millions of children brought to the USA by illegal immigrant parents, was killed in the Senate due to a Republican filibuster.
In 2012, the Senate rejected the UN Convention on the Rights of Persons with Disabilities treaty.
After President Obama nominated Merrick Garland, Republican Senators stated that they refuse to confirm him or any of Obama’s nominees.
Congress can defund proposals using the Power of the Purse.
Obama’s 2009 executive order aimed to close Guantanamo Bay within the year, but Congress passed the Supplemental Appropriations Act (2009) to block funds for transfer or release of detainees.
Congress overturned JASTA in 2016 – 97-1 in Senate.
President Bush’s veto of the Medicare Improvements for Patients and Providers Act (2008) was overridden.
The House impeached Trump in 2019 because he was thought to have pressured foreign leaders into investigating Joe Biden, but the Senate found him not guilty.
SUPREME COURT
Supreme Court can declare the President’s actions to be unconstitutional through the process of judicial review.
Rasul v. Bush (2004) - the Supreme Court ruled that President Bush’s powers as Commander-in-Chief did not give him the authority to indefinitely detain ‘enemy combatants’ without trial.
Hamden v Rumsfeld (2006) didn’t allow President Bush to create military commissions to try detainees.
Boumediene v Bush (2008) held Bush’s Military Commissions Act (2006) to be unconstitutional as it infringed on habeas corpus.
National Labour Relations Board v. Noel Canning (2014) – Supreme Court ruled that President Obama’s recess appointments to the NLRB were unconstitutional because the Senate still claimed to be in session.
Why aren’t checks on the President effective?
UNITED GOVERNMENT
If Congress is controlled by the President’s party, the President can usually get members of his party to vote for his proposals.
The Democrats controlled both the House and the Senate after the 2008 elections, therefore President Obama was able to pass most of his legislative agenda, such as American Recovery and Reinvestment Act of 2009 (the economic stimulus) and Affordable Care Act of 2010 (Obamacare).
Also, soon after a President has been elected, Congress may feel that he has a large mandate to make proposals, therefore they may be more willing to pass his proposals.
VETOES AND SUPREME COURT
It’s hard for Congress to get the 2/3 vote needed to override the President’s veto.
President Bush only had 4 vetoes overridden and Trump none so far.
In January 2016, Congress failed to override President Obama’s veto of the Restoring Americans’ Healthcare Freedom Reconciliation Act (2015), which would have repealed much of Obamacare.
Also, the Supreme Court usually goes along with Presidential actions so that it isn’t labelled as being judicially active.
National Federation of Independent Business v. Sebelius (2012) upheld President Obama’s policy of Obamacare (2010).
How is the President Imperial?
EXECUTIVE ACTION
Presidents increasingly use executive actions to bypass Congress and issue signing statements to argue that certain provisions infringe on their executive power.
Trump used an executive order in March 2020 to prevent the hoarding of medical resources in response to COVID-19 – he has issued over 150.
As the federal minimum wage had not increased since the Fair Minimum Wage Act (2007), Obama signed Executive Order 13658, requiring agencies and departments to only hire contractors who paid their employees at least $10.10 an hour.
Obama issued a signing statement in 2014 on the National Defence Authorisation Act –challenged 20 sections.
2019 - Trump asserted executive privilege regarding the full Mueller Report at the request of the attorney general.
From January 20 - March 29 2017, Trump signed 20 executive orders - one of the most controversial orders called for a ban on all foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the US.
However, Congress can override veto and SC can strike down exec orders.
COMMANDER-IN-CHIEF
It could be argued that the President is imperial because of their strength abroad through their role of Commander-in-Chief.
Their constitutional position as Commander-in Chief clearly implies a responsibility and power to order military action without authorisation in cases of self-defence – Trump ordered targeted drone strike on Qassem Soleimani in Jan 2020.
Authorisation for Use of Military Force (2001) authorised the President to use force against anyone who aided 9/11 - Obama carried out airstrikes on Syria in 2014 even though ISIS were only loosely connected to 9/11.
The President’s power over treaties has increased due to sole-executive agreements, which have no input from Congress.
In November 2013, Obama’s Iran Nuclear Program sole-executive agreement lifted sanctions on Iran if it limited nuclear technology for 6 months.
However, sole-exec agreements can’t require new laws/funding, power to declare war is ultimately Congress’ and Congress can reject treaties.
PRESIDENTS HAVE SIGNIFICANT POWER AT THE START OF THEIR TERM
If presidents enjoy healthy support from the public, this can give them much greater political power to pressure Congress.
Members of Congress will be more likely to seek the president’s endorsement, hoping to boost their own popularity, and may fear the backlash that could come from opposing a popular president’s proposals.
When he was first elected, President Obama enjoyed strong public support, which helped to make him extremely influential within his party.
The Democrats had also won large majorities in both the House and Senate, making it much easier for the President to work alongside the leadership in Congress, and for bills to pass even without Republican support.
The Patient Protection and Affordable Care Act (2010) passed without a single Republican vote. In fact, over 97% of votes in Congress had the President’s preferred outcome in 2009, dropping only slightly to 85.8% in 2010.
In his first year, President Trump polled consistently higher amongst Republicans than other leaders in his party.
Polls conducted for CNN in December 2017 found that 85% of Republicans viewed Trump favourably, considerably higher than the support for Vice President Pence (82%), House Speaker Paul Ryan (66%) and Senate Majority Leader Mitch McConnell (31% in a September poll).
Why isn’t the President imperial?
CONGRESS
The President is imperilled because Congress can make the President weak.
Congress can reject leg proposals, appointments, use Power of Purse and impeach.
President Obama’s DREAM Act (2010), which would have given citizenship to millions of children brought to the USA by illegal immigrant parents, was killed in the Senate due to a Republican filibuster.
Refused to hear Merrick Garland in 2016.
Obama’s 2009 executive order aimed to close Guantanamo Bay within the year, but Congress passed the Supplemental Appropriations Act (2009) to block funds for transfer or release of detainees.
SUPREME COURT
The Supreme Court can make the President weak.
Supreme Court can declare the President’s actions to be unconstitutional.
Rasul v. Bush (2004) - the Supreme Court ruled that President Bush’s powers as Commander-in-Chief did not give him the authority to indefinitely detain ‘enemy combatants’ without trial.
Hamden v Rumsfeld (2006) didn’t allow President Bush to create military commissions to try detainees.
Boumediene v Bush (2008) held Bush’s Military Commissions Act (2006) to be unconstitutional as it infringed on habeas corpus.
National Labour Relations Board v. Noel Canning (2014) – Supreme Court ruled that President Obama’s recess appointments to the NLRB were unconstitutional because the Senate still claimed to be in session.
FOREIGN POLICY LIMITS
