Chapter 27: The President’s Domestic Powers

“It is important. . . that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.”

–George Washington (1)

 

American presidents have a wide range of formal powers, but the founders were, as Garrett Epps has written, “artfully vague about the extent and limits” of those powers. (2) Put another way, “the Constitution permits either an active or a passive executive.” (3) Several factors determine the extent to which a president can successfully exercise domestic political power. These include her margin of victory, Congress’ partisan power balance, and the president’s own understanding of how to act while in office. One important situation to consider is whether we are in a divided government, which is when the president and at least one congressional chamber are from different parties. Such a situation does not necessarily have to lead to gridlock, but it does make it difficult for a president to accomplish his policy goals.

If a president is politically well-positioned to act and is personally predisposed to act, she can draw upon the following key powers.

Veto Power

High on the list is the president’s ability to veto bills passed by Congress. The word “veto” is Latin for “I refuse.” The president has two kinds of veto, both of which you should know: a regular veto and a pocket veto. When Congress sends a bill to the president, he can handle it in several different ways. If he signs the bill, usually in a ceremony, the bill becomes law. If he does not sign the bill, it will become law anyway after ten working days. His third option is to veto the bill by sending it back to Congress with a veto message about why he feels the bill should not become law. This is called a regular veto. Congress can override a regular veto with a two-thirds vote in both chambers, but the chances of a successful override are not good. Of the 1,507 regular vetoes issued from 1789 through 2016, only 111 were successfully overridden. (4) That pattern continued during the Trump administration. Of Trump’s nine vetoes, Congress only successfully overrode one. If Congress happens to adjourn in the ten-day period, the president must consider the bill. If the president does not sign the bill, this is called a pocket veto. One important difference between a regular veto and a pocket veto is that Congress cannot override a pocket veto.

Executive Orders

Another presidential power is issuing executive orders to executive branch members. By issuing an executive order, the president can direct executive branch members to do many things, so long as those actions lie within the law and so long as they do not entail appropriating new federal money. Congress can overturn an executive order if there are enough votes to do so—which would require a simple majority in both chambers, or a simple majority in the House and 60 votes to end a filibuster in the Senate if the president’s party wished to defend his use of power. An incoming president can issue an executive order countermanding an executive order issued by a previous president. Rarely do executive orders get more than a passing reference in newspapers. Presidential critics from both parties often claim that executive orders constitute a “power grab” by the president who is issuing them. However, William Howell, a political science professor at the University of Chicago, argues that “it just doesn’t match up with the facts on the ground. It’s not all power grabs. A lot of it is clearly trivial stuff.” (5) Still, it’s always a good idea to be vigilant about presidents acting on their own without legislative mandate.

Map of Internment Camps for Japanese-Americans During World War II
Map of Internment Camps for Japanese-Americans During World War II

Occasionally, executive orders have broader consequences or make big news. You should be familiar with some prominent executive orders.

  • Executive Order #9066, issued February 1942—President Franklin Roosevelt authorized the Secretary of War “to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion…” (6) The U.S. military then detained and removed against their will over 100,000 Japanese Americans living in California, Oregon, Washington, and Arizona. These people, most of whom were U.S. citizens, were placed in prison camps for the war’s duration because they constituted a security risk, even though no evidence was ever presented to that effect. In 1988 Congress issued a public apology and gave $20,000 in restitution to each of the 60,000 surviving internees.
  • Executive Order #9981, issued July 1948—President Harry Truman directed “that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.” (7) This order effectively desegregated the U.S. military and officially ended a long-standing practice of assigning less desirable duties to racial minorities.
  • Executive Order #13228, issued October 8, 2001—President George W. Bush created the Office of Homeland Security. This executive order directed that the new Office of Homeland Security “identify priorities and coordinate efforts for collection and analysis of information within the United States regarding threats of terrorism against the United States and activities of terrorists or terrorist groups within the United States.” (8) Rather quickly, this order transformed into legislation creating the Department of Homeland Security, charged with preventing terrorist attacks and minimizing damage from potential terrorist attacks and natural disasters.
  • Executive Order #13769, issued January 2017—President Donald Trump issued an executive order very early in his first month in office called Protecting the Nation from Foreign Terrorist Entry into the United States. For 120 days it barred entry to any refugee waiting to resettle in the United States; it prohibited all Syrian refugees from entering the U.S.; and it banned “the citizens of seven Muslim-majority countries—Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen—from entering the U.S. on any visa category.” (9) After some early defeats in court, the Trump administration altered the language of the ban and took the case to the Supreme Court. In a five to four decision, the Court majority ruled that the president was within his powers under the Immigration and Nationality Act, which allows the executive to suspend an entire “class” of people from entering the United States. The dissenters argued that the Immigration and Nationality Act also forbids the executive from discriminating based on nationality. (10)

Executive Branch Appointments

Another useful tool is the president’s ability to appoint officeholders throughout the executive branch, as they can appoint those who are politically loyal as well as capable of carrying out the president’s domestic policy agenda. (11) In fact, a president will typically appoint thousands of people to various posts in the executive branch. Presidential appointments such as cabinet-level secretaries, other executive agencies’ high officials, and ambassadors are all subject to the “advice and consent of the Senate,” which means that the Senate must approve each appointment with a simple majority vote. The Supreme court case Meyers v. United States (1926) established that presidential appointees to executive agencies can be removed by the president without Senate approval. However, the Court did rule in Humphrey’s Executor v. United States (1935) that presidential appointees to independent regulatory commissions or agencies that have “quasi-judicial” or quasi-legislative” functions can only be removed according to the legislative stipulations that created the agency or commission. This is important, because the federal government has a many of these kinds of commissions or agencies, and conservative members of the Supreme Court would like the president to have unlimited authority over their members.

At the president’s direction, executive branch appointees use their congressionally granted statutory authority to put the president’s program into effect. Much of the statute’s language is either open to interpretation or allows executives discretion in how exactly to enforce the law. Law professor Kim Wehle points out that Article II’s provision that the president “shall take care that the laws be faithfully executed, and shall commission all the officers of the United States” still allows the president and her appointees a fair amount of discretion in applying the law. The Obama administration, for example, was within its powers to defer action on children who were brought to the United States by their undocumented parents, as was the Trump administration to end that program. (12)

The State of the Union Address and the Bully Pulpit

The constitutional provision that the president “shall from time to time give to Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient,” has given rise to the annual State of the Union Address. Before a national television audience, the president addresses a joint session of Congress in January or February, accentuates his administration’s accomplishments, and argues for measures he would like Congress to pass. Thomas Jefferson preferred to send Congress a letter, and the traditional annual personal visit to Congress to give an address did not develop until Woodrow Wilson started the trend in 1913. The State of the Union’s effectiveness depends heavily on the level of public support the president enjoys at the time. More broadly, presidents are able to use their rhetorical abilities and media attention to force the country to at least consider specific policy proposals. President Theodore Roosevelt recognized and used these abilities, coining the term bully pulpit to refer to his ability to push an agenda. Today, we generally refer to a bully pulpit to mean any position which gives the holder the positional and rhetorical context with which to strongly advocate a position. Note that the word “bully” in this context doesn’t mean to bully people. Instead, President Roosevelt simply meant that his office was a “wonderful” or “awesome” pulpit from which to preach his views.

Pardons and Reprieves

The Constitution gives presidents the power to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Note the two limitations on the pardon power: presidents can only pardon people who have been charged with a federal (not state) crimes, and presidents cannot pardon someone in the executive or judicial branches who Congress has impeached. The president can issue a full pardon, which restores the recipient’s full rights so they can run for office, serve on juries and purchase firearms, or a conditional pardon, which restores partial rights. Pardons do not imply that the person is innocent, nor do they expunge the original conviction. The president can also commute a sentence which typically allows a person to leave federal prison before completing their full sentence, but they maintain the other impacts of their federal conviction. Most presidential pardons and commutations are not controversial. The Department of Justice’s Office of Pardon Attorney has a process to handle petitions from people convicted of federal crimes, and it periodically presents presidents with lists of people who could be pardoned if the president so chooses. Most of the time, the exercising presidential pardon power is not a particularly newsworthy event.

However, you should be familiar with the controversial presidential pardons that have occurred in modern history. Note that the presidential pardon power is absolute in the sense that neither Congress nor the Supreme Court can countermand a presidential pardon. If, however, a president was to use his pardon power in a way that abused his office, he could be subject to impeachment and removed.

  • In 1974, President Gerald Ford pardoned Richard Nixon for any crimes committed while in office. Nixon therefore avoided prison, even though people who carried out his orders ended up in jail. This action may have caused Ford to lose the 1976 election.
  • In 1979, President Jimmy Carter granted a blanket amnesty to all Vietnam-era draft evaders. Carter intended to help the nation heal its Vietnam wounds, but the result was to momentarily re-animate the acrimonious debate about that war.
  • In 1992, President George H. W. Bush issued controversial pardons to several high Reagan administration officials who had been involved in the Iran-Contra Scandal where they circumvented Congress and sold arms to Iran, using the proceeds to illegally fund the Contra rebels in Nicaragua. Bush pardoned Secretary of Defense Casper Weinberger, who allegedly lied to the independent counsel investigating the scandal, and six others who were involved in the scheme. Perhaps most significantly, Bush pardoned Weinberger before his trial, at which President Bush was expected to be called as a witness.
  • In 2001, President Bill Clinton pardoned billionaire financier Marc Rich, who fled the country in 1983 before he was indicted for allegedly evading taxes, committing fraud, and illegally participating in oil deals with Iran. While he was out of the country, Marc Rich’s ex-wife, Denise, donated roughly $1 million to the Democratic Party and gave money to Hillary Clinton’s successful Senate campaign. (13)
  • In 2017, President Barack Obama created controversy when he used the pardon power to commute Chelsea Manning’s remaining sentence. Manning, an American activist, whistle blower, and former U.S. Army soldier, had served seven of 35 years for stealing and releasing to the media diplomatic and military cables that proved embarrassing to the United States.
  • President Donald Trump issued more controversial pardons than any president. In his first use of this power, Trump pardoned Sheriff Joe Arpaio, who had been found guilty of defying a judge’s order to stop detaining and harassing Latinx residents of Maricopa County, Arizona. (14) In 2019, Trump pardoned an Army officer and a Navy SEAL who had been convicted of committing war crimes—one for murder and obstruction of justice and the other for posing with the corpse of an enemy combatant. He also pardoned another Army officer who was awaiting trial for murdering a detainee in Afghanistan. Trump’s pardons disregarded the recommendations of the Pentagon leaders, who felt that they would undermine military leadership’s ability to maintain proper order. (15) At the end of his administration trump pardoned Roger Stone and Paul Manafort, two people who were intimately involved in campaign’s outreach to Russia for help in the 2016 election and convicted by federal juries for crimes ranging from lying to the FBI, obstructing Congress, and threatening a witness. Trump also pardoned Charles Kushner father of his son in law Jared Kushner, who had been convicted of tax evasion witness tampering and illegal campaign contributions. (16)

Emergency Powers

President Trump declared a national emergency at the U.S. border with Mexico as a way to divert funds to support building a wall between the two countries, which Congress did not approve. Congress passed a joint resolution denouncing the move, but Trump vetoed it. Several lawsuits followed, but ultimately a 5-4 Supreme Court majority refused to stop the president. (17) This case highlights the importance of the president’s emergency powers.

When a president declares an emergency, the National Emergencies Act of 1976 and other statutory provisions open up all sorts of new presidential powers. The Brennan Center for Justice catalogued 136 emergency powers available to a president, fully ninety-six of which “require nothing more than [the president’s] signature on the emergency declaration” to go into effect. (18) And the powers available to a president in an emergency are breathtaking. For instance, the president can “shut down many kinds of electronic communications inside the United States or freeze American’s bank accounts.” Emergency declarations under the statute are supposed to last less than one year, but emergency declarations are often renewed “for years on end.” Even beyond the National Emergencies Act, “other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.” (19) Presidents declare national emergencies with a disturbing frequency—dozens of times since the National Emergencies Act was passed. President Trump declared a national emergency at the southern border in order to commandeer funds he wanted to build a wall between the U.S. and Mexico.

Many Americans incorrectly think that that Posse Comitatus Act of 1878 means that the U.S. military cannot undertake domestic policing functions. In fact, the law merely requires that Congress authorize such military use, which it did in the 1807 Insurrection Act. The Insurrection Act was used by President Eisenhower in 1957 to send federal troops to desegregate Little Rock High School and by President George H. W. Bush in 1992 to send the military in to quell the Los Angeles riots that erupted after Los Angeles police officers were acquitted for beating Rodney King. The Insurrection Act is impressive in its scope. Elizabeth Goitein describes it this way:

“As amended over the years, [the 1807 Insurrection Act] allows the president to deploy troops upon the request of a state’s governor or legislature to help put down an insurrection within that state. It also allows the president to deploy troops unilaterally, either because he determines that rebellious activity has made it ‘impracticable’ to enforce federal law through regular means, or because he deems it necessary to suppress ‘insurrection, domestic violence, unlawful combination, or conspiracy’ (terms not defined in the statute) that hinders the rights of a class of people or ‘impedes the course of justice.’” (20) 

Congress could limit or better define presidential emergency powers, but it has not done so. The Supreme Court has traditionally deferred to presidential action in emergencies. In one famous case—Youngstown Sheet and Tube Company v. Sawyer (1952)—the Court struck down President Truman’s efforts to seize steel plants during a strike to keep them running because he feared production delays would harm the Korean War effort. Interestingly, however, Truman did not invoke statutory emergency powers in that situation and instead argued that the Constitution gave him inherent power to seize the steel plants. It’s an open question how the Court might have ruled had Truman invoked emergency powers.

What if . . . ?

What if a president declared a national emergency and used law enforcement and the military to target people of a particular religion or lawful visa status to apprehend, detain, and/or deport them? What if you knew someone well who was a member of the targeted population? What would you do?

References

  1. George Washington, Farewell Address. September 19, 1796. Our Documents.
  2. Garrett Epps, “The Founders’ Great Mistake,” The Atlantic. January/February 2009.
  3. David. J. Bodenhamer, The U. S. Constitution. A Very Short Introduction. New York: Oxford University Press, 2018. Page 40.
  4. The Presidency Project. http://www.presidency.ucsb.edu/data/vetoes.php
  5. Quoted in Gregory Korte, “Obama’s Executive Orders You Never Hear About,” USA Today. April 11, 2016.
  6. Franklin Roosevelt, Executive Order Authorizing the Secretary of War to Prescribe Military AreasOur Documents. February 18, 1942.
  7. Harry Truman, Executive Order Establishing the President’s Committee on Equality of Treatment and Opportunity in the Armed ServicesThe Harry S. Truman Library and Museum. July 26, 1948.
  8. George W. Bush,Executive Order Establishing Office of Homeland SecurityThe White House. October 8, 2001.
  9. Krishnadev Calamur, “What Trump’s Executive Order on Immigration Does—And Doesn’t Do,” The Atlantic. January 30, 2017.
  10. Dara Lind, “Supreme Court Rules in Favor of Trump’s Travel Ban,” Vox. June 26, 2018. The case is Trump v. Hawaii(2018).
  11. Of course, as we’ll see later in the text, presidents also nominate federal judges, most of whom are on the bench affecting policy long after the president is out of office. For this section, we’ll stick to talking about executive branch appointments.
  12. Kim Wehle, How to Read the Constitution. And Why. New York: Harper. Pages 82-85.
  13. Jonathan Rauch, “Forget the Marc Rich Pardon. Worry About the Scandal,” The Atlantic. March 1, 2001.
  14. Matt Ford, “President Trump Pardons Former Sheriff Joe Arpaio,” The Atlantic. August 25, 2017.
  15. Zeeshan Aleem, “Trump Just Issued Multiple War Crime Pardons. Experts Think It’s a Bad Idea,” Vox. November 16, 2019.
  16. Pamela Brown, Paul LeBlanc, Katelyn Polantz, and Kevin Liptak, “Trump Issues 26 New Pardons, Including for Stone, Manafort, and Charles Kushner,” CNN. December 23, 2020.
  17. Richard Wolf, “Supreme Court Allows Border Wall Spending in Battle Between President Donald Trump and Liberal Opponents,” USA Today. July 26, 2019.
  18. The Brennan Center for Justice, A Guide to Emergency Powers and Their Use. September 4, 2019.
  19. Elizabeth Goitein, “The Alarming Scope of the President’s Emergency Powers,” The Atlantic. January/February, 2019.
  20. Elizabeth Goitein, “The Alarming Scope of the President’s Emergency Powers,” The Atlantic. January/February, 2019.

 

 

 

 

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