Study Guide

The President, Vice President, Cabinet, government branches, autonomous bodies, and other boards, commissions, and committees comprise the administration. It is in charge of carrying out and enforcing rules.
Since the Americans suffered immensely under the British empire, the framers of the constitution were reluctant to grant the executive so much power. They passed constitutions that resulted in small governorships with little powers, which were often shared by councils, and brief terms in office for state executives. As time passed, some states reinforced their governorships, resulting in some states remaining weak and others being very powerful.
The Structure of the Presidency
Most of the discussions over Article II at the Constructional Convention were about the structure of the institution and not the executive powers

The framers debated on:

Selection of the President: Article II required that

The only individual who is natural born citizens can become president

The individual must have attained the age of 35 years

The individual must have been a resident of the United States for fourteen years.

The previous constitution provided for no qualifications for the vice president, but this got corrected in 1804 where the ratification mentioned that no individual could become a vice president who is not eligible to be the president.

Removal of the President: Impeachment is the method of removal of an incumbent president or vice president who abuses the office as provided for by the constitution. It occurs upon charges of Treason, Bribery or other High Crimes and Misdemeanors.

Tenure and Succession of the President: The presidential term is four years according to the constitution. Initially, there were no restrictions on the number of cycles a president could serve. George Washington introduced the two-term limit he announced he would not run again at the end of his second term.

The vice president assumes the powers of the president in the event of death, resignation or disability of the president as provided for by Article II.

Constitutional Power of the President: Unlike presidential selection and succession, the presidential powers are the same today as the Philadelphia Convention drafted them. The President has authorities to:

Make treaties provided two-thirds of the senators present at the making of the agreements agree with them.

Nominate, and by and with advice and consent of the Senate appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court and all other Officers of the United States

THE FAITHFUL EXECUTION OF THE LAWS: DEFINING THE CONTOURS OF PRESIDENTIAL POWER

Congressional Limitations on Executive Power

The courts have placed limits on president’s power among them the congressional limit. The courts state that the president’s power on some issues, if any, should stem from either an act of Congress or from the constitution itself. The president’s powers are, however, not fixed as he/she can act against the will of the legislature if the president can show that the power he/she is asserting conclusively and exclusively belongs to him.

The Obligation to Enforce the Law

The president’s powers are also limited regarding law enforcement as the constitution require the president to enforce all the laws not just those administration supports.

DOMESTIC POWERS OF THE PRESIDENT

The president is more constrained by the public, Congress and the Supreme Court in internal affairs than in foreign ones.

Veto Power

After receiving a piece of legislation from the Congress, the president can decide to sign it into law, Veto it or ignore it. When he vetoes it is decision can be overridden by the required two-thirds of the Congress

Presidential Signing Statements

The signing statements express the president’s concerns regarding particular bills by;

Representing the president’s interpretation of the language of the law

Announcing constitutional limits on implementation of some of the law’s provisions

Indicating directions to executive branch officials as how to administer the new law in an acceptable manner

The Power of Appointment

The president has the power to appoint and remove administrators of various federal departments as per the following guidelines:

Principal Versus Inferior officers: Article II provides the president with the power to appoint principal administrative and judicial officials, but for minor positions, the Congress allocates the authority to other bodies.

Recess Appointments: the president, under Article II, Section 2, is allowed to fill up all vacancies that may happen during Recess of Senate provided that the appointments expire at the end of the next session.

The power of Remove

When the president’s appointees do not carry out their duties as per the expectations of the president or are not loyal to the administration’s policy objectives, he may remove them.

Executive Privilege: Protecting Presidential Confidentiality

The administrative privilege argument asserts that specific conversations, documents, and records are closely tied to the sensitive duties of the president and should remain confidential. The Congress, the Judiciary or other bodies cannot access this information without the consent of the president.

Immunity: Protecting the President from Lawsuit

Although the president is immune to some lawsuits, there have been controversies on whether or not the president of the United States is immune from other civil lawsuits in federal court.

The Power of Pardon

The president has the power to grant amnesties for offenses against the United States except in cases of impeachment. A pardon erases al penalties and other legal effects of a criminal conviction.

THE ROLE OF THE PRESIDENT IN FOREIGN POLICY

The president has the power to create and carry out the nation’s foreign policy. The following roles are assigned to the United States president in regards to foreign policy:

The president is the commander in chief of the army and the navy under Article II, Section 2. Military power protects the nation from hostile actions from other countries and also can be used as a threat to persuade other nations to follow a particular course of action

Making of treating is solely on behalf of the United States is given to the president under Article II

The president selects the individuals to represent the United States in other nations

The president receives ambassadors and ministers of foreign countries.



CHAPTER 5: THE SEPARATION OF POWERS SYSTEM IN ACTION

All the branches are provided with significant powers by the constitution although these powers may potentially overlap. As a result, there have been disputes mainly between the president and the Congress which the judiciary has been called upon to resolve. At times the court is also at the center of the conflicts as it is called upon to solve them

For instance, the president is the commander in chief of the army and the navy but article I empower the Congress to:

Provide for the common defense and general welfare of the country

Declare war

Raise and support armies

Provide and maintain a navy

Make rules to govern and regulate the land and naval forces

Provide for calling up the militia to carry out the laws of the nation, suppress insurrections, repel invasions and

Provide for organizing, arming and disciplining the militia

Disputes often arise when the president acts on matters involving the security of the country like calling for war without approval from the Congress.

DEBATE OVER THE SEPARATION OF POWERS SYSTEM

There are two contemporary strands of thinking about separation of powers:

Formalism- emphasizes that the constitution creates clear boundaries between and among the branches of government by bestowing on each a primary power and that federal judge should not allow for deviation from this plan unless the constitution permits it

Functionalism- emphasizes a fluid system where there are no strict divisions among the branches. Believes powers should be shared rather than separated

Both stress that all the three branches of government contribute to constitutional interpretation and have their strengths and weaknesses.

Formalism is not only unrealistic but also undesirable as it may limit the ability of the government to act with creativity when problems emerge. It, however, ensures minimal disagreements. Functionalism, on the other hand, may undermine the framer's plan which was to make sure no branch gains too much power and may also catalyze a lot of disputes.

When each of the branches is making particular decisions, they believe that they are acting in accordance with the constitution as otherwise, this would be a violation of the oath of office they take when getting into those positions.

DOMESTIC POWERSCongress may delegate some authority to another branch of government or assert powers assigned the executive and judicial departments

Delegation of Powers

To fulfill all its responsibilities, the Congress may transfer some of its legislative powers to other branches or nongovernmental entities.

It may also be able to formulate policies but lack the expertise to fill in the details and hence the delegation.

The Congress may delegate its powers for political reasons like in instances where it wants to avoid dealing with “hot potato” issues.

The issue of delegation has brought about debates which the Supreme Court finds itself entangled in like when it is asked to decide whether or not such designations are appropriate. The Court in most cases upholds such delegations.

Congress and the Exercise of Executive and Judicial Powers

The Congress is not always eager to give away its powers but instead, seeks to exercise authority over the executive and the judiciary.

The president has been accorded veto powers by the constitution. The legislative veto was, however, developed to give the Congress power to veto bills by a vote. By so doing the legislative branch sought to practice executive powers. Unless the legislative veto gets used sparingly, it gets viewed as a violation of separation of powers doctrine.

In other cases, the legislature seeks to exercise judicial powers like when it attempted to pass the Religious Freedom Restoration Act of 1993 to direct the court to use a particular standard of law to adjudicate First Amendment free exercise claims.

POWERS OVER FOREIGN AFFAIRS

Rules about limitations on government powers may get ignored in instances where the survival of a nation is at stake like in times of war.

Constitutional War Powers

Both the legislative and executive branches have powers that can control the military, and this has always sparked controversy. The president is the commander in chief while the Congress is given the decree raise and provide support to the military. The Congress could declare war after which the president takes over to ensure that only a single official is in charge for successful waging of the war. If the president is to declare war, he has to get approval from the Congress.

Civil War

Civil wars arise when regular course of justice is interrupted by revolt or rebellion so that courts cannot be kept open. In the event of civil war, the president should be allowed some leeway to be able to declare a war without the approval of Congress like in instances where there is no time for the Congress to assemble or respond in good time.

World War II

During this war, the government took steps that amounted to suppression of rights and liberties something that often happens during times of war. The president ordered that Nazi saboteurs get tried in military tribunals. The courts upheld this decision contrary to the precedent set in Milligan arguing that the saboteurs had to rights to be treated as prisoners of war for they had entered the country without a uniform to gather military information and destroy property.

Korean Conflict

During the conflict, the president took action which was not authorized by the Congress, and this got viewed as a violation of the constitution it is for this reason that the federal court ruled in favor of the steel industry. In this case, the president did not have the power to declare seizure of the plant without approval since there was no sudden attack on the country.

Foreign Policy in the Middle East

Regarding the issues, in Iran and Israel, the president exercised his powers without approval from the Congress. There have been controversies on whether or not the president should be the ‘sole organ’ when it comes to foreign affairs or the Congress should participate in the decisions made by the government. Different approaches to balance of power between the president and the Congress in international relations matters should get considered. To some extent, the president should be allowed to exercise his powers regarding external affairs without seeking the approval of the legislative arm of the government.

The War on Terrorism

In times of terrorists’ attacks the president has the powers to take any actions he deems necessary and in the interest of the state to protect the country regardless of whether or not he has received authorization from the Congress. This includes declaring war on terrorist states and detaining terrorist suspects who substantially support terrorist organizations.

Controversies are always present like in times when cases have gotten filed against the executive for been seen to have acted against the rights and liberties of the people. In most instances when the president moves without the approval of the Congress the court rules against the executive. However, in the Boumediene case, the court ruled against the executive although the president had an endorsement from the Congress.