U. S. Presidents

Official Seal of the President of the United States

U. S. Presidents

PAGE CONTENTS:

Presidential Powers

Executive Privilege

Building A Cabinet

Presidential Signing Statements

Presidential Powers

By Steve Sampson

Presidential power has evolved plenty since the country's start, when, under the Articles of Confederation, there was no chief executive. Today, presidents have powers and privileges not specifically mentioned in the Constitution. In fact, the Constitution gives the president fewer than a dozen key jobs. Know what they are?

Article II says that the nation's "executive power shall be vested in a President of the United States of America." It specifically enumerates these six powers:

Being "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." Suspicious of standing armies, the framers made sure that the military had a civilian head. To further check and balance, they gave Congress the power "to declare war," "raise and support armies," "provide and maintain a navy," and "make rules for the government and regulation of the land and naval forces." Of course, that hasn't stopped presidents from sending troops into battle without congressional declarations of war.
The right to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Compared to commanding the troops, "requiring opinions" may sound like handing out homework. But it's part and parcel of the president's role as boss of the federal bureaucracy. The executive branch is by far the biggest branch of government, employing some 4 million people (including active-duty military personnel).
The "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Presidential pardons are final. Neither Congress nor the courts can review them. In the federal government, the president is the forgiver in chief.
The "power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." In practice, presidents and their executive branch officers negotiate and sign treaties without much senatorial "advice," but those treaties aren't binding on the United States unless the Senate ratifies them. Presidents sometimes avoid ratification problems by signing "executive agreements" with foreign governments rather than treaties per se.
The power to "nominate, and by and with the advice and consent of the Senate, . . . appoint ambassadors, other public ministers and consuls, judges of the Supreme Court," and "other officers of the United States." This has come to mean that the president submits some 2,000 civilian appointments, and more than 30,000 military ones, for Senate confirmation every year. The Senate routinely confirms nearly all of these.
The "power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." When the Senate isn't in session, the president can appoint people to important jobs even without its advice and consent. Such "recess appointments" are often controversial and generally don't make the Senate happy. It has always guarded its constitutional right to provide "advice and consent" on important appointments.

Along with those six enumerated powers, Article II of the U.S. Constitution enumerates three key presidential responsibilities. According to the framers, the president must:

"From time to time give to the Congress information on the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient." The president is not charged with formally proposing legislation. That's Congress's job. But, from recommending measures based on "the state of the union" to signing bills into law, the president is supposed to play a key role in the legislative process.
"Receive ambassadors and other public ministers." This means lots of state dinners and photo ops--black tie often required. What's more important, though, is that it means the president is the nation's head diplomatic honcho. He is the head of state.
"Take care that the laws be faithfully executed." This one is crucial. It charges the president with the fundamental mission of the executive branch--to execute the laws. Along with being commander in chief, this may be the broadest, most expansive presidential responsibility or power listed in the Constitution.

The president is also charged with commissioning "all the officers of the United States" (commissioning comes after they've already been approved by the Senate) and is empowered to convene special sessions of Congress "on extraordinary occasions." But that's mashed potatoes compared to executing the laws and commanding the troops.

--Steve Sampson

Executive Privilege

by Steve Sampson

The phrase "executive privilege" doesn't appear in the U.S. Constitution. It wasn't commonly used until the 1950s, when President Eisenhower's attorney general, William Rogers, used it to fend off congressional commie-hunter Joseph McCarthy. Yet the idea behind the phrase goes all the way back to George Washington--and to foundational arguments about the "separation of powers" in American government.

Today, we'll look back at how presidents Washington and Jefferson each staked claims to executive privilege. Tomorrow, we'll return to more recent times, when President Eisenhower faced down Joseph McCarthy, and President Nixon got caught on tape.

Back in the 1790s, tension between the newborn United States and Great Britain had escalated to the point that many leaders feared a return to war. So, in 1794, President Washington sent John Jay--first chief justice of the U.S. Supreme Court, co-author of The Federalist Papers, and all-around American patriot--on a mission to England. There, Jay negotiated a treaty, now called the Jay Treaty, that more or less resolved the key disputes.

That was the good news. The bad news was that Jay's treaty was highly unpopular on the home front--especially with the Jeffersonians, who portrayed it (and Jay) as a sellout to England. Despite Washington's support, crowds burned Jay in effigy and threw stones at treaty entreaters like Alexander Hamilton.

Eventually, the House of Representatives sent a request to President Washington for documents pertaining to the Jay Treaty negotiations. Setting precedent, Washington effectively told the House to take a hike. Reasoning that senators had a constitutional role to play in the ratification of treaties, Washington agreed to share the documents with them, but not with representatives in the House. Simply put, it was none of their constitutional business.

Thomas Jefferson followed Washington's lead during Aaron Burr's treason trial in 1807. Burr had been Jefferson's vice president from 1801 to 1805, but by 1807 he had fallen far from any kind of grace. After killing Alexander Hamilton in a duel in 1804, Burr had plotted with James Wilkinson to invade Mexico and launch a western empire all their own. Wilkinson ratted Burr out to Jefferson, and soon the former VP was on trial for treason.

During his trial, Burr asked the court to compel Jefferson to turn over private letters concerning Burr, one of which Burr claimed would exonerate him. Jefferson said that producing the documents might jeopardize public safety. And anyway, it wouldn't be right to disclose "a mixture of rumors, conjecture, and suspicions." Sound familiar? Those are pretty much the two main arguments for executive privilege today: the need to keep the nation secure, and the need to keep executive-branch officials speaking freely and frankly to each other, without worrying that what they say is "on the record."

Nevertheless, Chief Justice John Marshall (the founding father of judicial review in the United States) ruled that Burr's Sixth Amendment rights--particularly the right to compel witnesses to appear at his trial--trumped Jefferson's claim of privilege. What's more, Marshall ruled, the Supreme Court should say whether revealing such documents imperiled public safety, not the president himself.

In the end, Jefferson produced the documents, but he made a point of doing so "voluntarily"--that is, he turned the letters over without admitting that the Court had the authority Marshall claimed for it. Incidentally, Burr was exonerated: nothing treasonous to the United States about launching an ill-advised invasion of Mexico, even if you are the ex-vice president.

President Eisenhower is hardly famous for activist policymaking, but when it comes to executive privilege, he played a crucial creative role. Previous administrations had generally assumed at least some form of executive-branch privilege. But the Eisenhower administration took this largely tacit prerogative and turned it into an explicit policy position. They called it "executive privilege," and they used it first and foremost to fight Senator Joseph McCarthy.

McCarthy and Eisenhower were both Republicans, but there was no love lost between them. Ike once reportedly told his aides that he would not "get into the gutter with this guy." Yet in 1954, he did. McCarthy had set out to expose communists in the U.S. Army, and Eisenhower--the old general--thought that went too far. So, his staff got down-and-dirty by revealing embarrassing information about McCarthy's efforts to obtain preferential treatment from the Army for an aide.

McCarthy struck back, demanding to see documents pertaining to meetings between the Eisenhower administration and Army officials. Eisenhower's response was unequivocal: "It is not in the public interest," he said, for the administration to disclose "any . . . conversations or communications, or any documents" concerning the ongoing business of the executive branch. To a group of Republican lawmakers, he put the point even more bluntly: "Any man who testifies as to the advice he gave me won't be working for me that night."

McCarthy never mounted a legal challenge against Eisenhower's claim--possibly because, by the end of 1954, the Senate was censuring him for unbecoming conduct. The Eisenhower administration, however, continued to insist upon its "executive privilege." They denied congressional requests more than 40 times between 1955 and 1960, setting a record for executive-privilege claims that stands today.

If Eisenhower expanded executive privilege, his former vice president, Richard Nixon, nearly discredited it. As the Watergate scandal unfolded, President Nixon repeatedly employed executive privilege as a means to stonewall the Senate investigation. First, he claimed executive privilege to prevent aides from testifying. Later, he tried to use it to withhold tapes of White House conversations that would ultimately prove his undoing.

When Watergate special prosecutor Leon Jaworski demanded that Nixon turn those tapes over in 1974, the case went to the Supreme Court, and the Court made its most definitive statement on executive privilege ever. In a unanimous 8-0 decision (with Nixon-nominee William Rehnquist abstaining), the Court ruled against the president, but explicitly recognized the validity of the executive-privilege claim.

"The president's need for complete candor and objectivity from advisors calls for great deference from the courts," wrote Chief Justice Warren Burger. Indeed, "the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties . . . is too plain to require further discussion." Nevertheless, "neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, . . . can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances."

In this case, the Court ruled that the specific interests of criminal justice and due process simply outweighed the president's generalized claim to privilege. Nixon was forced to turn the tapes over. He resigned a few weeks later.

Steve Sampson
Updated June 16, 2006

Building a Cabinet

Having a Cabinet of presidential advisers seems as American as apple pie and impeachment. But in fact, the Cabinet is not required by the Constitution.

A strong executive was the last thing many of America's founders wanted in the 1770s. They worried that if any one man gathered too much power, the states would have another king. So the first constitution, the Articles of Confederation, did not allow for a chief executive.

It took only a decade for the founders to realize that a weak central government wasn't going to cut it. They went back to the drawing board at the Constitutional Convention of 1787, and worked out a plan for a president and men to assist him.

In the space of a few months, the delegates did the heavy lifting of setting up a new U.S. government--outlining the checks and balances between the branches of government, setting up a bicameral legislature, and establishing departments in the executive branch to handle foreign affairs, defense, and the treasury.

During the convention, some delegates discussed establishing a council of advisers to the president. The president "may from time to time submit any matter to the discussion of the council of state, and he may require the written opinion of any one or more of the members," one proposal read. "But he shall in all cases exercise his own judgment, and either conform to such opinions, or not, as he may think proper."

In the end, only one aspect of the plan for a formal advisory council made it into the Constitution. It said the president "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."

Now, while the Constitution specified that the president could request advice from a department head, it took George Washington to make those men into a Cabinet. By May 1790, his administration was assembled. Each "principal Officer" was a heavy hitter. Alexander Hamilton was at Treasury, Thomas Jefferson was at State, and Henry Knox was at War.

At first, Washington followed the Constitution to the letter and met with Hamilton, Jefferson, and Knox separately to ask them for written opinions. But it wasn't long before he gathered together the three secretaries (along with the attorney general) to talk about issues of the day. That's the beginning of the Cabinet as we think of it today.

By the end of 1793, Cabinet meetings were occurring "almost every day," according to Jefferson. Around this time, the advisory council became known as the "Cabinet," in reference to the Cabinet Committee of royal advisers in England.

The Cabinet has grown since Washington's time, but its purpose as an advisory council has not changed all that much. It's still made up of the people who head the federal executive departments (there are 15 of them now). Other officials, such as the White House chief of staff, are considered "Cabinet-level" and therefore allowed to attend Cabinet meetings.

Cabinet members serve "at the pleasure of the president"--meaning they can be booted out at any time. The president also determines how often the group meets. For many years, the Cabinet met at least weekly whenever Congress was in session, but the schedule is more flexible now.

--Colleen Kelly

Presidential Signing Statements

By Steve Sampson

Presidential "signing statements" have officially become a constitutional controversy. Last Wednesday, the Republican chairman of the U.S. Senate's judiciary committee, Arlen Specter, introduced legislation that would let Congress sue President Bush over such statements, which he often appends to legislation he signs.

"If the president is permitted to rewrite the bills that Congress passes and cherry-pick which provisions he likes and does not like," says Senator Specter, "he subverts the constitutional process." Earlier in the week, a blue-ribbon panel appointed by the American Bar Association filed a report arguing the same--that "the use of presidential signing statements to have the last word as to which laws will be enforced . . . poses a serious threat to the rule of law" and violates "our constitutional system of separation of powers."

Just what are signing statements? And what's the constitutional fuss? Time to review the legislative process--and to see how signing statements have been tacked on.

Article I, section 1, of the U.S. Constitution gives "all legislative powers herein granted" to the Congress. In other words, it says that Congress gets to make the laws of the land. Simple enough, but there's a constitutional catch: Congress's would-be laws, called "bills," generally don't take effect unless the president signs them.

Actually, once both houses of Congress have passed a bill, there are three ways it can become a law:

The president can sign it, which is what happens most of the time.

The president can veto it, and both houses of Congress can vote by two-thirds majorities to override the veto.

The president can fail to return the bill to Congress "within ten days, Sundays excepted, after it shall have been presented to him"--assuming Congress is in session. If Congress isn't in session and the president doesn't respond to a bill, the bill fails through what's known as a "pocket veto." If Congress is in session and the president fails to respond, the bill becomes a law "in like manner as if he had signed it."

According to your high school civics book and Schoolhouse Rock, that's the end of the legislative journey. The bill either becomes a law, or it doesn't. But wait, there's more.

Early presidents pretty much followed these constitutional rules to the letter, and the Constitution says nothing about "signing statements." George Washington, for example, once noted that the Constitution required that he either "approve all the parts of a bill, or reject it in toto."

But starting in the early 19th century, presidents periodically began appending signing statements (basically, their own executive notes) to laws they signed. In the early days, most such statements were uncontroversial. They praised the law's creators in Congress, or applauded the policy the law supported. Many were akin to today's press releases.

Every now and then, though, a president would issue a signing statement that raised a substantive legal issue--questioning a law's constitutionality, restricting its enforcement, or sidestepping some of its provisions. Such legally substantive signing statements stirred up constitutional controversy from the start. When President Tyler used one to question the constitutionality of a bill he signed in 1842, a congressional committee protested that the Constitution empowers the president to sign bills or to veto them--not to sign them and add comments that amount to "a defacement of the public records and archives."

Prior to the 1980s, legally substantive signing statements were rare. Since the Reagan administration, however, presidents have grown fond of them. And the president who's used signing statements to challenge bills he's signed most often is President Bush.

In fact, from 1787 until 2000, all the presidential signing statements combined contained fewer than 600 challenges to the bills the presidents had signed. President Bush has made more than 800 such challenges since taking office in 2001.

Often, President Bush has used signing statements to claim the right not to enforce provisions of laws that he believes impinge on his own constitutional authority, or that he thinks are otherwise unconstitutional. But that, critics say, is itself unconstitutional.

They point straight to article I, section 7, which says, "If he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated." Congress is then charged with reconsidering the bill, and has the opportunity to override the president's objection.

Steve Sampson
July 31, 2006

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