The Executive Power

Question 1

What is the most important paper for America?

Answer 1

The Constitution
The constitutional pecking order, Article 1 for Congress, Article 2 for the Executive, is not a coincidence. Congress, not the presidency, was supposed to be the dominant institution of the American political system.

Question 2

What does the 2nd article of the Constitution settle?

Answer 2

the power of the President : a presidency that could be controlled by Congress and by the judiciary. ⇒ Checks and balances.

Question 3

What does the 1st article of the Constitution deal with?

Answer 3

describes the design of the legislative branch of US Government - the Congress

Question 4

1787

Answer 4

When the Founding Fathers gathered in Philadelphia to write the constitution of the US.

Question 5

What was the most important part of writing the constitution?

Answer 5

the most difficult and consequential question the Founding Fathers had to answer was that of the Executive branch.

Question 6

Why did the American war of Independence/American Revolutionary war happened?

Answer 6

Americans no longer wanted to be controlled by the British King who could decide everything for them

Question 7

The first attempt to a Consitution

Answer 7

The Articles of Confederation 1781, Congress was given both legislative and executive power and responsibilities.
> Americans thought that having a President even in a democratic system was already too close to having a King.

Question 8

Why was the first attempt to a consitution inneficient?

Answer 8

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. Executive power had become a “necessary evil”.

Question 9

What did the drafters of the Constitution have to balance?

Answer 9

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 and allow the president to turn into a king.

Question 10

What is the President of the US often referred as today?

Answer 10

the American president is often described as the Leader of the free world and the most powerful people on earth.

Question 11

The Imperial Presidency, 1973

Answer 11

Arthur Schlesinger Jr went as far as describing the American presidency as an imperial institution rather than a democratic one.

Question 12

What are the different sections of Article II?

Answer 12

Section 1 is mainly about the way the president is elected.
Section 2, 3 and 4 describe the power and the responsibility of the president and they will allow us to understand how the presidency evolved even though the constitution has remained the same.

Question 13

Article II Sections 2?

Answer 13

War powers, treaties and nominations

Question 14

Section 2, about war powers

Answer 14

• The President is the Commander in Chief of the Army and the Navy of the United States.
• only Congress was given the power to declare war and the president could only decide how to conduct the war once the decision had been made by Congress. And yet, all but five of the numerous wars, more than 200 wars, fought by the US were started not by a declaration of war by Congress but following a decision made by the president.

Question 15

What important wars were declared by Congress?

Answer 15

• Great Britain, war of 1812
• War of Mexico
• Spanish American War
• WWI, WWII.

Question 16

How come the President was the one declaring most wars when it’s against the say of the Constitution?

Answer 16

• the necessity for quickness in the decision making process.
  e.g. When the civil war started in 1861, Congress was not even in session and Lincoln 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.

Question 17

War Powers Act

Answer 17

1937
- the president can commit the military forces in only 3 cases : if congress votes a declaration war, if the president has been authorised by a law, in an emergency situation.
- the Act made it an obligation for the President to notify Congress within 48 hours of deciding a military decision and limited any military action decided by the President to 60 or 90 days

(many specialists of the American presidency think that this law actually strengthen the role played by the President by making it official that they could actually start a military operation without a declaration of war by Congress.)

Question 18

Section 2, about Treaties

Answer 18

the president “shall have power for, by and with the Advice and Consent of the Senate, to make treaties, provided two thirds of the Senators present concur”.

Question 19

How does presidency circumnavigate the Treaties law?

Answer 19

• the “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.

the President is now almost exclusively responsible for the foreign policy of the US.

Question 20

When were the executive agreements made legitimate?

Answer 20

the United States v. Belmont, 1937 ⇒ gave executive agreements the same equal values as treaties.

Question 21

United States v. Curtis-Wright

Answer 21

1936,

a decision of the US Supreme Court who described the president as the sole organ of American foreign policy.
Today recongnised as the Chief of American Foreign Policy even though the constitution does not make it clear that it should be their role.

Question 22

The Supreme Court

Answer 22

→9 justices. They are appointed for life and are in charge of interpreting the Constitution, therefore this gives the president the opportunity to influence the fate of the US for decades.

Question 23

Section 2, about nominations

Answer 23

one of the most important powers of the American president.
All federal judges including Supreme Court justices are nominated by the President and have to be confirmed by a simple majority of the Senate.

E.g. Donald Trump’s decision to nominate Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the SC had a direct influence on issues as important as abortion rights or religious freedom. If the nomination power itself hasn’t really changed since 1787 the increasingly important role played by the SC makes the president’s right to nominate justices more important than it has ever been.

Question 24

Section 2, presidential pardon

Answer 24

This power might be the strangest of all, indeed pardoning people was typically a royal prerogative and even though the founding father wanted to avoid the president becoming a king, they still gave them the power to pardon as a check on the judiciary.

Question 25

Composition of the Congress

Answer 25

The Congress = The House of Representatives & the Senate
100 Senators = 2 per states
435 Representatives = depends on the number of inhabitants of the States.

Question 26

en gros, what does the Congress do?

Answer 26

in charge of laws, budget, declaring war and approving federal justices.

Question 27

Article II, Section 3

Answer 27

• makes the fundamental role of the president explicit: Take Care Clause
• focuses on the role played by the President on the Legislative process
• the Recommendations Clause

Question 28

Take Care Clause

Answer 28

“He shall take care that the laws be faithfully executed”.
It is a useful though obvious reminder that the President is the leader of the Executive Branch and that the main, if not the only reason why this branch of government was created was to make sure that the laws adopted by Congress would be executed and become a reality.

Question 29

The role played by the President on the Legislative process

Answer 29

the President has a legislative role = checks & balances. Congress adopts the laws, which is what the legislative does but the Executive can and should check Congress’s job.

First, the President “shall from time to time give to Congress Information of the state of the union”. ⇒ the most famous speech in American politics: the State of the Union Address

Question 30

The State of the Union Adress

Answer 30

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, it has become an opportunity for the President to propose their own legislative agenda to Congress and ask the Legislative branch to work on it. I
= Congress still adopts the laws or refuses to do so, but many of these laws are actually proposed by the President.

The change was so important that as soon as the 1950s the American political scientist Clinton Rossiter described the American President as the country’s “Chief Legislator” which is in this case an oxymoron. Even the Federal budget, which is probably Congress’s most important prerogative (the power of the purse) has been proposed by the presidency since the beginning of the 20th century.

Question 31

the Recommendations Clause

Answer 31

• the President can “recommend to Congress such Measures as he shall judge necessary and expedient”.
• the President has the right to convene Congress in exceptional circumstances like 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.

Question 32

President veto

Answer 32

The President can influence the Legislative process by using his veto (Article I, section 7) which forces Congress to gather the support of two thirds of its members in each House 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 altogether.

Question 33

Zivotofsky v. Kerry decision

Answer 33

2015, The Supreme Court declared that only the President had the right to recognise Jerusalem as the capital of Israel.

Question 34

Article II, Section 4

Answer 34

The section about Impeachment

Question 35

Impeachment

Answer 35

• Impeachment was created by the framers of the Constitution as the ultimate safeguard against the President becoming a dictator.
• If the President or any members of the US government clearly violate the law, then Congress can remove them.
• The Impeachment procedure itself is described in Article I : First the accused has to be impeached by a simple majority in the House of Representatives. If this happens the impeachment trial takes place in the Senate. The trial is presided over by the Chief Justice of the SC and in order for the accused to be convicted they have to be found guilty by ⅔ of the 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.
• 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 Representatives could impeach him following the Watergate scandal.

Question 36

Trump and the Impeachment

Answer 36

Trump was impeached by the House of Representatives in 2019 on two articles : abuse of power and obstruction of Congress (high crimes), but he was not convicted by the Senate.

He was impeached again in 2021 for incitement of interaction against the US government. The House of Representative voted again to impeach him, which makes him the first president to be impeached twice but he was again acquitted by the Senate.

Question 37

Inherent powers defition

Answer 37

The idea of inherent powers simply means that the President, just like Congress, has powers that are not explicitly written in the constitution. These are called un-enumerated powers or implied powers for Congress and Inherent powers for the President.

Question 38

What are the Inherent powers?

Answer 38

• The bully pulpit
• The unilateral powers
• The Executive priviledge

Question 39

The bully pulpit

Answer 39

the idea that the President, unlike Congress, or the courts has a unique capacity to communicate directly with the American people and use the prestige of his office in order to obtain their support.

Question 40

The unilateral powers

Answer 40

are 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.

Question 41

the executive priviledge

Answer 41

the idea that the president has the right to keep some information secret even from Congress and the courts in order to do their job efficiently. It was recognised by the SC in the United States v. Nixon, 1974.

Question 42

Checks and Balances, who has control over what?

Answer 42

• the President can use their veto power to prevent a bill from becoming a law.
• Congress can override their veto with a ⅔ majority in each house or by impeaching them if necessary.
• The President can control the Judiciary by nominating federal judges
• Federal courts can rebuke the constitutionality of presidential decisions.