Presidential Powers

The framers of the Constitution believed greatly in Montesquieu’s system of Checks and Balances.  In line with this thought, they also did not provide a great number of powers for the President.  However, during times of crisis, such as during the Great Depression, or war, we see the President greatly expand his power; usually unnoticed.  Article II of the US Constitution gives the president “executive power,” but really does not define what executive power means.  However, there are eight major roles for the president that are granted by the Constitution; some more substantial than others.  The framers also wanted a president who resembled a monarch, but also had the ability to act vigorously on the nation’s behalf.  Alexander Hamilton argued in Federalist 70 that a “feeble executive” would be bad as well, because that would reflect a “feeble” government system.

First, Article II says the president must command the army and navy as “Commander in Chief.”  This does NOT give the President the ability to declare war; that’s Congress’s job.  However, presidents have sent troops into Korea, Vietnam, Kuwait, Afghanistan, Iraq, and many other countries without an official declaration of war.  Abraham Lincoln also expanded the president’s role in the military.  He suspended habeas corups, nationalized the army, and grew the army.  Lincoln defined those actions as “inherent executive powers” in times of emergency.

The President of the United States also has the ability to nominate ambassadors, consuls, and judges to the Supreme Court and other federal courts.  Most are very familiar with this power, as it usually takes place in the public eye.  However, his role here is limited as well.  It takes Congressional approval for many of the President’s appointments.

The Constitution allows the President some roles in the legislative process.  The President can recommend legislation to congress, and can review legislation passed by congress; as well as veto legislation.  President Andrew Jackson was the first president to veto not only bills that are unconstitutional, but also bills that he viewed as bad policy.  Theodore Roosevelt also used his office to shape public opinion, and Wilson tried to use his position to encourage support for the US entering into the League of Nations; which did not happen.  Franklin Roosevelt expanded the office the most.  He used the Great Depression as a chance to gather more power.  He took control of policy making in his New Deal reforms.

The President of the United States can also grant reprieves and pardons.  A memorable example of a presidential pardon was Gerald Ford’s lame duck pardon of former President Richard Nixon.

Creating and drafting treaties is another role a president has in the United States.  The President has sole authority to draft the treaties, but the treaties must be approved by a 2/3 vote in the Senate.  The Senate has the ability to block a treaty from ratification; The Treaty of Versailles is one such treaty which has yet to be ratified.

The final two roles are somewhat obvious.  The president heads the executive department, and receives ambassadors, and other public diplomats.

There are a few notable court cases in which reiterate the limitations on a president’s power:

United States v. Nixon: President isn’t immune from legal process (also in Clinton v. Jones)

Train v. City of New York: President can’t refuse Congressionally appropriated funds

Humphrey’s Executor v. United States: Congress must approve president’s decision to remove official of regulatory agency