Powers of the US President

 

Introduction

The Constitution of the United States grants many powers to the President. The President is the head of State of the US, the head of the Executive branch of the US Government, and also acts as the Commander-in-Chief of the armed forces of the US. The Power of the US President along with the Federal Government has grown over time, since the establishment of the US Constitution. Further, the US itself is seen as a global superpower, and the President, consequently, the world’s most influential leader. The US President, thus exercises much influence in the international sphere, owing to the fact that he heads the world’s largest economy, as well as the world’s largest and most expensive military. This is also one of the reasons why the entire world follows the election of the US President with great interest every four years.

Powers of the US President (with Critical Analysis)

The powers of the US are very wide and reach the farthest corners of Governance. The President is the head of the Executive, the armed forces and also exercises power and influence in the legislative and policy-making process. These powers are explained as follows.

Commander-in-Chief of the US Armed Forces

Article II of the US Constitution designates the president as the Commander-in-Chief of the Navy and Army of the US, and even the militia of the States if called into service. However, being the commander-in-chief does not mean that the power extends to declaring war. Alexander Hamilton, in Federalist No. 69, stated that the power to declare war, as well as raising and regulating these armies and fleets belongs with the Congress.

Critical Analysis:

The US Constitution aims to check the war powers of the President by giving only the Congress the power to declare war and regulate the armies. However, war has not been declared by the US Congress since the World War II. US Presidents have deployed the military in many more times than the 5 times the Congress has declared war. An example of this is the US fighting what can only be termed as wars in Vietnam and Korea. In both these cases, the Congress gave immense war powers to President George W. Bush. This led to a murky situation with respect to the Constitution, as the decision to give power to the President to use military force in other nations was given by the Congress, thus making it their decision but the President did not have such power under the Constitution, thereby violating the system of checks and balances established in the Constitution.

Executive Powers

The President of the US heads the Executive branch of the Federal Government under Article II of the US Constitution, thereby entrusted with the powers to manage the affairs of the Government. The US President issues Rules, Regulations, etc., and also has the power to issue Executive Orders, which have the force of law.

Critical Analysis:

As a result of the incorporation of the Doctrine of Separation of Powers, both the Congress and the Judiciary can keep a check on the Executive in general, thereby the executive powers of the President as well. The extent of the executive powers, especially with respect to delegated legislation are defined by the parent statute enacted by the Congress. In the case of Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), the court struck a legislation that gave the President almost unlimited powers to determine competition codes and policies in the oil industry.

Even apart from this, all executive actions of the President are subject to Judicial Review, including executive orders, thus making sure that the President does not act in an unconstitutional manner in the name of executive actions and ensuring that there is an effective system of checks and balances in place.

Legislative Powers

The President of the US has certain powers related to legislations passed by the Congress. Firstly, the president can give assent to a bill within 10 days of receipt if he agrees with the bill. If he does not agree with the bill, he can veto such a bill and return it to the Congress suggesting changes to be made. However, the president must either give assent to the entire bill or none of it, as selective vetoes are not allowed, as held in Clinton v. New York City, 524 U.S. 417 (1998). Technically, it is also possible for the President to record his opinion on the Constitutionality of a legislation in his signing statement. This was first done by President George Washington in 1792.

Critical Analysis:

The President may have a power to veto a legislation, but such a veto can be overridden by a 2/3^rd majority vote of both Houses of the Congress. Thus, the final say is with the Congress rather than the President. However, the Congress has overridden fewer than 10% of presidential vetoes, according to the official website of the US Senate, thus pointing to the supremacy of the President when it comes to legislation as well.

Powers to Appoint

The President, before taking office must appoint more than 6000 federal positions, ranging from heads of Government departments, white house staff, and diplomats as well. Article II, Section 2 of the US Constitution provides that the President shall make appointments of ambassadors, ministers, consuls, officers and Supreme Court judges with the aid and advice of the Senate. The President can also make a recess appointment which needs to be filled while the Congress is not is session, and such appointment is valid only till the next session of the Congress.

Critical Analysis:

The President’s powers to appoint people to various positions is largely balanced by the fact that the President is bound to act in consonance with the aid and advice of the Senate. Thus, is this regard, the decision of the President is essentially the decision of the Senate. The appointment of Robert Bork to the US Supreme Court is an example of when the Senate stepped in to strike down the nomination of even a Supreme Court judge. Certain federal bodies, such as the Securities Exchange Commission have set terms for appointed personnel that outlast Presidential terms, in order to ensure independence.

Power over Foreign Affairs

Article 2, Section 2 of the US Constitution also gives the power to the President to enter into treaties with other nations, on the aid and advice of the Senate. The President also appoints officials in the diplomatic corps and foreign ambassadors on the aid and advice of the Senate.

Critical Analysis:

The President must exercise all powers over foreign affairs in accordance with the US Constitution, which mandates the President to act on the aid and advice of the Senate in this regard. This ensures Separation of Powers, since many treaties have the force of law. Further, it keeps a check on the President’s power to ensure that only those treaties which are beneficial to the country are entered into and qualified and deserving officers are appointed in the diplomatic corps.

Clemency Powers

Article 2, Section 2 also gives the power of clemency to the President, meaning that the President can grant reprieves and pardons for offenses against the US, including criminal offenses, but excluding impeachment. An issue of pardon by the President means that the punishment for a crime is waived. A person who seeks such pardon must do so by executing a formal petition addressed to the President.

Critical Analysis:

This power of the President is unusually broad and without restriction, the only real restriction being that it cannot be used in an impeachment proceeding. This power mainly acts as a check on the judiciary, especially in cases where the Federal Sentencing Guidelines are too severe. However, the fact that this is largely an unchecked power has given rise to many controversies. A recent example of this is when the sentence of Roger Stone, a known Republican political consultant and lobbyist, convicting him of witness tampering and perjury among other offences, was commuted by President Donald Trump, who also belonged to the Republican Party. This action of the President was seen as a political favour to Roger Stone.

Emergency Powers

The Constitution does not explicitly provide emergency powers to the President, but many scholars are of the view that this is implied in the Executive power of the President, especially since the Executive can act much faster than the Legislature.

Critical Analysis:

The courts have generally been divided on the issue of emergency powers. In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld an order passed by President Roosevelt by invoking emergency powers, stating that all Japanese Americans were to be sent to internment camps during World War II. This power, according to the Supreme Court, was a valid exercise of the President’s power as the Commander-in-Chief of the armed forces, which also allowed him to direct a war.

However, in Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952), an order issued by the President in exercising emergency powers, nationalising the steel mills of the country to provide resources for war was struck down by the Supreme Court. The Supreme Court in this case was of the opinion that the Constitution does not give the power to the President to unilaterally seize private property as the Commander-in-Chief of the armed forces. Thus, the main principle evolved by the courts is that emergency powers can be exercised to the extent permitted under the Constitution and not otherwise.

Executive Privilege

Executive Privilege gives the authority to the President and even other officials part of the Executive branch of the Government, to maintain secrecy by withholding certain information from the courts and the Congress. This privilege has not been explicitly provided for in the US Constitution, but instead flows from the Doctrine of Separation of Powers. Separation of powers may demand that certain information be withheld from other branches of the Government to ensure independence and smooth functioning.

Critical Analysis:

While executive privilege is an important part of the doctrine of separation of powers, there have been any instances in the US when this power has been misused by the President. The most glaring example is the Watergate Scandal, where President Nixon refused to disclose recordings of his communications with his aides, which came to be known as the Nixon Tapes, with the court in a criminal case. This scandal had its roots in the Nixon Administration’s continuous attempts to conceal its involvement in the 1972 break-in at the Democratic Party’s office in the Watergate Building. The court, however, in United States v. Nixon, 418 U.S. 683 (1974), stated that Executive Privilege cannot be used to hide evidence that may be relevant to a criminal case. This scandal eventually led to the resignation of President Richard Nixon.

These powers and restrictions now lead to the question, whether the US President is actually a colossus with feet of clay.

Is the US President a Colossus with Feet of Clay? (Conclusion)

The meaning of the word colossus is a person of immense importance or ability, or an all-powerful entity. The US President definitely has a lot of power, but these powers also come with many limitations and restrictions. Some of these restrictions are explicitly provided for in the Constitution, while some are implied.

In theory, the President’s powers are limited under the Constitution and also through the Doctrine of Separation of Powers, as shown above. For instance, his powers as commander-in-chief do not allow him to declare war, which only the Congress can do. The Judiciary and the Legislature further keep a strong check on the President’s executive power. All matters related to foreign affairs are largely decided by the Senate, and Executive Privileges are checked by the courts. Thus, in theory at least, the President is a colossus with feet of clay.

The situation in practice, however, is slightly different. For example, the President has had immense powers of initiating war, given the fact that the US has fought many wars after the second world war without any declaration of the Congress to this effect. Further, less than 10% of the legislations vetoed by the President have been overturned, as shown above. The powers of clemency and pardon are unrestrained and have even been misused by the President. In this regard, the President does seem like a colossus with immense powers.

However, even in practice, the Congress and the Judiciary have played a proactive role in limiting the President’s Executive Powers, Emergency Powers, those related to Foreign Affairs and even Executive Privileges. Therefore, it is true that the American President, for the most part, is a colossus with feet of clay. However, when it comes to Powers related to War and Clemency, the President seems to be the Supreme Entity in the country, if not in theory, in practice.

Thus, it is in the author’s humble opinion that the given statement does carry some weight of truth, but must be taken with a grain of salt, as the powers of the President seem to be practically unrestrained in some spheres.