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The Formal (and Informal) Powers of the President

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V Beizer

on 26 January 2014

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Transcript of The Formal (and Informal) Powers of the President

The Formal (and Informal) Powers of the President
Formal Powers
Power to appoint federal officials including judges and ambassadors via Appointments Clause
Congress cannot limit or eliminate this power, but Senate may choose to not confirm
The Informal Powers
Not listed in The Constitution
Derive from prestige of office
Stands and acts for America ("first citizen")
Persuades people
Voice of the country
Draws media attention
Power to commit our forces to defend against a sudden attack
Executive privilege for Presidential papers and discussion, affording further protection and power to refuse disclosure
Makes treaties (that are subject to Senate confirmation)
As Commander in Chief, is head of Army, Navy, and the National Guard
Commissions all officers of these groups
Grants pardon for federal offenses (except in cases of impeachment)
Fills vacancies that may occur during Senate recess
Gives State of Union address to Congress
Power to recommend measures to Congress, and to convene both houses in "extraordinary occasions"
VB
AG
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Impoundment
President cuts money from other branches for his or her own use
All American presidents since John Adams often used this as a way of making relatively small cuts in Federal spending on programs that they deemed unwise or unnecessary
The 1974 Congressional Budget and Impoundment Act
The 1974 Congressional Budget and Impoundment Act
Created a set of institutional changes designed to help Congress regain power over the budget process
Richard Nixon-> Refusal to disburse $12 billion of congressionally-appropriated funds in 1973-74
Said deficit too high, need to cut spending
1972 presidential election Nixon asked Congress to grant the President authority to cut federal spending so as to keep the budget under control
Congress opposed this
Joint Study Committee on Budget Control
"overall point of view, together with a congressional system of deciding priorities"
Act passed over 1974 Veto
Goals: (1) Strengthen and centralize Congress' budget authority (2) Reduce the President's impoundment authority
War Powers
War Powers Resolution of 1973
: Federal law meant to check President's power to commit US to an armed conflict without Congress's approval
Allows only through declaration of war by Congress, "statutory authorization" or "national emergency"
Requires President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days with an additional 30 day withdrawal period
Arose out of Vietnam War backlash
Passed despite Nixon veto
AG
AG
Instances of WPR Conflict
Ford and Vietnam Evacuations
Reagan and El Salvador
1981-State Department dispatched 20 military advisers to El Salvador to aid its government against guerrilla warfare.
Reagan didn't report situation under WPR, and the State Department said a report was not required because the US personnel were not being introduced into situations of immediate hostility.
11 members of Congress challenged the President's action by filing suit on grounds that he had violated the Constitution and the WPR by sending the advisers to El Salvador.
Case dismissed by ruling that Congress, not the court, must resolve the question of whether US forces in El Salvador were involved in a hostile situation
Case led to various proposals to add specificity to WPR in what constitutes Congressional authorization, but none were adopted
Independent Counsels
Assures no abuse of power of their positions
Inspired by Watergate
$200 million to investigate high-ranking government officials
Iran-Contra arms sales of the Reagan Administration
The Clintons’ involvement in a financially troubled Arkansas land development venture called “Whitewater”
A part of presidential powers to appoint v. Giving president too much power
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Watergate
Nixon
1972 presidential election
Burglars broke into the Washington, D.C. headquarters of the Democratic Party, located in the Watergate Hotel
Convicted of burglary and wiretapping
Nixon fired the individual who was investigating this scandal
Articles of impeachment/ Resigned
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AG
Crockett v. Reagan (1981)
Failed to comply with reporting requirements and no congressional approval in El Salvador involvement
Case Exception: Invasion of Panama and Bush
VB
Ethics in Government Act
1978 (After Watergate-1972)
Executive agency responsible for issuing rules and regulations about ethical conduct and financial disclosure, providing training in ethics, monitoring the ethics of practices in departments and agencies, and giving guidance on matters of ethics
Unconstitutional
Other side says President should not be allowed say what they do is corrupt or not
Impeachment
Impeachment: the constitutional method for removing presidents, judges, and other federal officers who commit "Treason, Bribery, or other high Crimes and Misdemeanors
US Constitution states that House of Representatives has "sole Power to try all impeachments"
Requires majority vote from House of Representatives and then 2/3rds vote in Senate
In this way, fundamental part of system of checks and balances of power/corruption
VB
Historic Conflicts Leading to Impeachment or Calls for Impeachment
Nixon
Clinton
Bibliography
"CRS Annotated Constitution." CRS/LII Annotated Constitution Article II. 19 Nov. 2013
<http://www.law.cornell.edu/anncon/html/art2frag36_user.html>.
"FINAL REPORT OF THE INDEPENDENT COUNSEL FOR IRAN/CONTRA MATTERS." Walsh
Iran / Contra Report. 18 Nov. 2013 <http://www.fas.org/irp/offdocs/walsh/>.
"H. Doc. 105-311 - Appendices to the Referral to the United States House of Representatives
Pursuant to Title 28, United States Code, Section 595(c) Submitted by the Office of the Independent Counsel." H. Doc. 105-311 - Appendices to the Referral to the United States House of Representatives Pursuant to Title 28, United States Code, Section 595(c) Submitted by the Office of the Independent Counsel. 19 Nov. 2013 <http://www.gpo.gov/fdsys/pkg/GPO-CDOC-105hdoc311/content-detail.html>.
"Judicial Independence and the Line Item Veto." Judicial Independence and the Line Item Veto.
19 Nov. 2013 <http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/fisher.html>.
"Presidential Powers." Presidential Powers. 19 Nov. 2013 <http://nationalparalegal.edu/
conLawCrimProc_Public/Federalism/PresidentialPowers.asp>.
"Search Online." Research Our Records. 19 Nov. 2013 <http://www.archives.gov/research/
index.html>.
"The Modern Presidency: Tools of Power, Topic Overview." 7. The Modern Presidency: Tools of
Power, Topic Overview. Web. 19 Nov. 2013.
<http://www.learner.org/courses/democracyinamerica/dia_7/dia_7_topic.html>.
(Thanks for Listening!)
Clinton Impeachment
1999
1974
Nixon
Watergate: Nixon maintains that any illegal activities had been performed without his knowledge and consent
Nixon hires General Archibald Cox as Special Prosecutor, but when Cox exposes that many high-level Nixon officials had conscience knowledge of illegal activities, Nixon fires Cox and gets rid of his position (this action known as
Saturday Night Massacre
)
Justice Department and House Judiciary Committee continue their own investigations, with growing evidence mounting against Nixon.
Nixon resists turning over key pieces of evidence, including tape-recorded conversations he possessed.
July 27th, 1974-Committee votes that Nixon be impeached, saying he had "prevented, obstructed, and impeded the administration of justice"
Nixon resigns before impeachment, first president to do so
Ford pardons Nixon 1 month later
VB
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Impeachment arose due to Clinton's extramarital relationships:
Jones Case-Paula Jones sued Clinton for sexual harassment. Jones calls on ex-White House intern Monica Lewinsky to testify. Lewinsky denies relationship with Clinton.
Clinton's denial under oath of any involvement with Lewinsky caught attention of Independent Counsel Kenneth Starr--believed him to have committed perjury
Starr assembled grand jury, issued subpoena, and got Lewinsky to testify with promise of immunity
Starr submitted report to House Judiciary Committee, House of Representatives approves two articles of impeachment regarding Lewinsky relationship and lying under oath
President's lawyers say behavior is "morally reprehensible" but not impeachable. H of R voted to impeach Clinton in 1998, but a 2/3rds majority of the senate needed to convict Clinton was not achieved
VB
Some people believe Clinton was impeached for politcal, but not constitutional reasons. His trial reflects the deeply divided government and partisan politics of the time.
As war in Vietnam ended, Ford used US forces to evacuate American citizens and foreign nationals, as well as to retake a US vessel--the SS Mayaguez
Controversy over whether Ford had adequately consulted Congress before making these decisions
The Ford Administration held that it had met the consultation requirement because congressional leaders had been notified prior to
actual introduction

of armed forces
Prevailing congressional opinion was that the President must seek congressional opinion and take it into account before making the
decision

to commit forces.
VB
VB
Dec. 20th 1989-Bush orders 14,000 US military forces to Panama for combat, on top of the 13,000 already there
Dec. 21st, he reported to Congress under WPR but did not report to Congress any introduction of US forces into hostilities
However, War Powers issue was NOT raised because:
1. Congress was out of session
2. President's action in Panama was very popular among American population and supported by most members of Congress
Grenada and Reagan
October 25th 1983-Reagan reported to Congress under WPR that he had ordered a landing of 1900 US Army and Marine personnel in Grenada to restore order and protect US Citizens
Many members of Congress contended that he should have cited section 4(a)(1), which would have triggered a 60-90 day time limitation before the order took place
White House spokesman Larry Speakes said that there was no need for this citation, as the combat troops would be out within 60-90 day time period.
11 members of Congress filed a suit challenging the constitutionality of Reagan's Grenada invasion. A judge stated that courts should not decide such cases courts should not decide such cases unless the entire Congress used the "institutional remedies available to it."
VB
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Line-Item Veto
Line item veto: A special form of veto in which the chief executive has the right to prevent particular provisions of a bill enacted by a legislative assembly from becoming law without having to kill all the other parts of the bill.
Popular at state level (all but six allow governors this power), but rarely allowed for Presidents
Many Presidents have backed concept of line-item veto, but few have obtained this power
Arguments against LIV
:
Would give President more power than Congress over federal spending
Would give President "de facto" legislative authority of altering the law, thereby violating separation of power.
No guarantee that President wouldn't abuse this power
Arguments for LIV
:
Would possibly make President more accountable for federal expenditure by giving him more power in budget negotiations
Would help eliminate "rider amendments" sneaked onto important bills by legislators
Line Item Veto Act of 1996:
briefly allowed line-item veto power for the Federal government, but was declared unconstitutional and struck down by judicial review two years later

VB
Neustadt's Conclusion
"Effective influence for the man in the White House stems from three related sources"
Presidents must persuade/bargain, not command
Shared, not separated powers
President's sources of power
"He makes his personal impact by the things he says and does"
AG
President's Power
Persuasion
A president must convince the people
When a president has to resort to commanding people, he is showing weakness
Shared not Separated
Each branch of the government relies on each other and if they are not working towards the same goal nothing with get done
Health Bill/ Shutdown
Sources of Power
Reputation
Likability
Public Prestige (Popular support)
Must keep control of his/her own power
AG
AG
AG
AG
Media Attention
One Leader
People pay attention to the problems brought up and what they call attention to
Obama addresses the nation on Syria
AG
Historic Conflicts about Line Item Veto
VB
Clinton and the Line Item Veto Act:
Wanted to eliminate federal programs and project that could slash billions from budget, to cancel specific spending items, and close tax loopholes that aid special interests (pork barrel spending).
Normally, this kind of proposal would never make it past the Republicans in the very divided Congress. However, thanks a build-up of support for the line-item veto over the last decade, Clinton was granted the power to nullify specific parts of bills to help get them passed in Congress.
Controversy immediately arose over this decision and its possible breaching of separation of powers.
In Clinton v. City of New York, the court decided that the use of the line-item veto is in violation of the
Presentment Clause
of the Constitution (i.e. the procedure by which bills originating in Congress become laws)
Reagan's Pleas for Power of Line Item Veto
Throughout his presidency, Reagan continually asked legislators for power to veto portions of appropriations bills in order to combat fiscal irresponsibility
Reagan possessed the power of the LIV as Governor of California and felt that it would add "backbone" to his Presidency
In the face of over 200 billion dollars in deficit, some members of Congress supported his plea in the hopes that it would make for more effective economic legislation by allowing President to focus on what he considers to be wasteful or unwise items
However, there was much uproar from legislators who considered the LIV to be an intrusion into Congressional agenda, and a device that would give the President an unfair political advantage. Many argued that the LIV would require a constitutional amendment since Congress controls the "power of the purse"
However, Reagan's pleas proved ineffective, as he was continually denied the power of the LIV
Formal Powers: More important than informal powers?
VB
Set in law, and therefore must always be followed, unlike informal powers
Legitimize President's role in the government
Formal powers give President tremendous power that, despite checks and balances, can still cause huge and irrevocable damage (as well as good improvements)
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