Unique Presidential Powers

Unique powers of the President of the United States
- emergency powers
- executive orders
- executive privilege

Emergency Powers
Based on the principle of inherent powers and supported by the Court decision US v Curtiss-Wright Export Corp
Usually invoked in cases of foreign affairs or national security

Executive Orders
Executive orders carry the force of law with them and
    - enforce legislative statutes
    - enforce the Constitution or treaties w/ foreign nations
    - establish or modify rules and practices of executive administrative agencies
Only legal requirement is that executive orders be published in the Federal Register
Unlike laws, executive orders can be revoked by subsequent executives (see Hyde Amendment)

Executive Privilege
Perhaps the most controversial because it allows the executive to withhold information from the other branches
Often invoked when claiming disclosure would threaten national security
Principle has been upheld by the Court
Extent of privilege famously upheld in case of US v Nixon

While the President has unique powers, the position is not all powerful. Review process of and reasons for impeachment from Unit III.

The Political President

The President is, in essence, a super-politician. The President has reached the pinnacle of the American political game. Therefore, you cannot separate the President from politics despite the wishes of some. The President uses political power in a number of ways including as the leader of his political party and through access to the media.

- Chief of Political Party
  The President has, historically, engaged in political patronage by appointing loyal party supporters to certain government jobs. While much of that was done away with in the late 1800s through the creation of the civil service, it still exists in less noticeable ways. (i.e. - US Ambassador to _name that tropical location_ )

- Power for Persuade
  The President, by the nature of the position and the media, has access to "the bully pulpit". This affords the President the opportunity to try and persuade people and/or direct the tone and nature of the debate. To be President, you have to have some ability to do this.

The President & Public Approval
The President needs the support of certain constituencies in order to get things done.
- national electorate
- party members
- key members of opposing party
- Washington

Public approval is the ultimate check on Presidential power.
- high approval ratings = get lots of stuff done
- low approval ratings = Congress won't work with you
- all Presidents start with highest approval ratings they will likely achieve (honeymoon effect)
- military action can increase popularity (rally around the flag effect)
- prolonged military action will decrease popularity
- President may "go public" to gain popular support for agenda (pressure Congress)

How has the recent Syria crisis and response illustrated the above?

But, also consider this....

When evaluating Presidential approval....


Americans tend to look at their wallets.

Agree or disagree??

The American Presidency

What does the President do?

What are the roles of the President of the United States?









Roles of the President of the United States of America
- Head of State
- Chief Executive
- Commander in Chief
- Chief Diplomat
- Chief Legislator







Formal Qualifications to be President of the United States
- minimum 35 years of age
- resident of US for minimum of 14 years
- natural-born US citizen

Unofficial qualifications??

- wealthy
- male
- WASP
- prior executive experience
- good communicator
- charisma






How does the President get elected?
Win the electoral college (not the popular vote....though it doesn't hurt to win that one too)
See graphic on p.165

Presidential succession was defined by both the Presidential Succession Act (1947) and the 25th Amendment.  (See chart on p.166)
- Vice President
- Speaker of the House
- President Pro Tempore of the Senate
- Secretary of State
- Secretary of the Treasury


Head of State
Serves in this role in addition to duties as head of government. Includes ceremonial duties as well as receiving foreign dignitaries and making official state visits to other countries.

Chief Executive
Role as head of government to make sure that the laws of the United States are faithfully executed. Includes overseeing all executive departments and the civil service of the government. To assist, the President may appoint individuals to various positions in the executive branch, federal judiciary, regulatory commissions, government corporations, etc (with the consent of the Senate). There are also a handful of unique executive powers and/or privileges.
  - grant reprieves
  - grant pardons
  - issue signing statements on laws

Commander in Chief
Unique power of the President as commander of all United States armed forces. (civilian control of the military) Commander in Chief role versus the Congressional power to declare war (A1 S8 C11) has been a tricky dynamic. War Powers Resolution/Act creates some clarity.

Chief Diplomat
Power to make treaties with foreign nations (with consent of .....), offer diplomatic recognition to foreign governments, forge executive agreements with foreign heads of state, nominate ambassadors to foreign nations, and generally lead United States foreign policy.

Chief Legislator
While not an active part of legislating (not a part of the legislative branch), the President can influence legislation in various ways.
  - suggesting/ passing along legislation to Congress
  - recommendations in addresses, especially the State of the Union (bully pulpit)
  - veto (pocket veto / line-item veto) see Table 13-1 on p.458

Powers of Congress & Differences in House and Senate

Let's quickly review the various powers of Congress: Article I Section 8
Expressed (Enumerated) A1 S8 C1-17
Inherent
Implied A1 S8 C18

And don't forget the powers denied to Congress: Article I Section 9

Now let's examine the Enumerated Powers in detail
Article 1 Section 8 Clause 1 - power to levy taxes (remember sources of tax revenue)
Clause 2 - power to borrow money (borrowing can lead to deficits)
Clause 3 - power to regulate commerce (commerce clause; Gibbons v Ogden; HofA v US)
------
Clause 11 - power to declare war (War Powers Act)
Clause 12 - raise an army
Clause 13 - raise a navy
------
Clause 18 - to do what is necessary & proper (necessary & proper clause/ elastic clause)

Checks on the power of Congress:
- checked by the executive - veto
- checked by the judicial - judicial review
- checked by the people - elections
- checked by the legislative - opposing chamber

What are the structural differences between the House and Senate? (see Table 12-1 on p.410)

What do those differences reflect and what are the effects? (see explanation of rules & rules committees on p.411)

Many of you have heard of a filibuster, but what is it really? What is its effect? How do you beat the filibuster?

Now....it's time to play..... Who's In Congress??!!!!
Refer to Table 12-2 on p.413.
In short, broad, and general terms, members of Congress are:
- older
- whiter
- manlier
- richer
than the general American population.

Defining Interstate Relations and Defining Constitutional Powers

While the Constitution allows a certain amount of autonomy for the states, it also lays out specific rules for how the states must interact with one another as a part of this Union.

Interstate Relations - Article IV
A4 S1 - give full faith and credit to every other state's public acts, records, and judicial proceedings
  full faith & credit clause
As long as the conditions surrounding the record, act, license, etc. are similar between the states, each state is expected to recognize the records, judicial rulings, licenses, of other states (rule of reciprocity)

A4 S2 - extend to every other state's citizens the privileges and immunities of its own citizens
  privileges & immunities clause
A state cannot discriminate against a citizen of another state in the application of law just because they are from another state

A4 S2 - agree to return persons who are fleeing from justice in another state back to their home state
  extradition clause
States must be willing to extradite persons fleeing justice when requested and not knowingly harbor them

Defining Constitutional Power
Since the federal court system has the power to interpret the Constitution (What's that called? Where did it come from?), it stands to reason that they would be the ones to define the limits of Constitutional power when it is in dispute.

McCulloch v Maryland - 1819
  - at question: the necessary & proper clause
  - decision defines: validity of n&p clause; supremacy clause

McCulloch v Maryland: Part 1

McCulloch v Maryland: Part II

Gibbons v Ogden - 1824
  - at question: state power v national power
  - decision defines: extension of commerce clause

Concurrent & Prohibited Powers

Concurrent powers
  powers held at both levels of government as a matter of fact; not necessarily due to enumeration

The Constitution, while being very gray at times, is also a very logical document. It is structured as a basic outline of government and its powers. It stands to reason then, that if Article I Section 8 were to list the powers of the Congress, that Article I Section 9 lists the powers that are denied to Congress. 

In short hand form:

AI S9 C1 - slave trade cannot be abolished before 1808

AI S9 C2 - writ of habeas corpus shall not be suspended (unless in times of rebellion)

AI S9 C3 - no bill of attainder or ex post facto laws allowed

AI S9 C4 - no direct tax shall be laid (direct tax on the people)

AI S9 C5 - no export tariffs

AI S9 C6 - no preference given to certain states/ports regarding tariffs

AI S9 C7 - no shady money dealings Congress

AI S9 C8 - no giving of titles of nobility; no accepting titles of nobility

Dual Federalism & the Separation of Powers

So, federalism establishes a model in which the national government has its power but the states have some level autonomy to do what they wish, right?

Perhaps it is not that easy and clean. The Constitution does not clearly lay out the parameters for this system of dual federalism. It enumerates some powers for the national government and reserves some for the states.

 - Enumerated powers (aka - delegated powers): those powers specifically given to the national government in the Constitution

 - Reserved powers: those powers reserved for the states (see Amendment X)

 - Inherent powers: those powers not spoken of but which are, by their nature, powers of a national government

This will leave us with what?

Instead of being totally confused by the federal system (marble cake style) let's try and figure out who does what?

Article I Section 8 of the Constitution pretty clearly lays out what the Congress can do in Clauses 1-18

"The Congress shall have the power to...."

AI S8 C1 - levy taxes

A1 S8 C2 - borrow money

A1 S8 C3 - regulate commerce (Ahh, the commerce clause. This will be important later on.)

........

A1 S8 C11 - declare war

A1 S8 C12 - raise an army

A1 S8 C13 - raise a navy

........

A1 S8 C18 - "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof."

         (This is the coup de grace. This is what is known as the 'necessary and proper' clause)

 The 'necessary & proper' clause gives Congress what we call implied powers. The are not enumerated anywhere, but can be implied by a reading of the Constitution. 

Contrast that with the 10th Amendment.

Brook Lopez just had the inherent contradiction
in the Constitution explained to him during a timeout.

Will someone please give us a sign! Tell us, what are we to do if ever the national government's laws and a state government's laws contradict!

A6 C2 - The Supremacy Clause

"The Constitution, and laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

But wait....there's more.

Since Article 1 Section 8 tells you everything Congress can do, they included Article 1 Section 9 to spell out what Congress cannot do.

Does your brain hurt yet? More to come.....

Federalism: A Love Story

The United States operates under a governmental model known as federalism. It is not the only type of government model however.

3 main systems of governmental distribution of power
- unitary systems
- confederal systems
- federal systems

The United States, under the Constitution, operates under a model we call dual federalism.

This would, in Madison's mind, be the best way to ensure the protection of liberty and preservation of the nation in his new republic. One of the reasons it would do so is because it would allow the states a certain amount of autonomy. Therefore, various political subcultures would develop in the individual states that was more reflective of the people of that state than of the nation as a whole.

Note what Madison said about this in Federalist No.51. Its in the back of your book. There is also an excerpt on p.90 of the text.

In essence, this autonomy allows the states to serve as 'laboratories of democracy'. Google that term and see what comes up.