POLISCI 101 Chapter Notes - Chapter 6: Indirect Election, Usa Freedom Act, Human Services
Course CodePOLISCI 101
ProfessorRaymond La Raja
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The Constitutional Origins and Powers of the Presidency:
The presidency was established by Article II of the Constitution, which asserts, “The executive
power shall be vested in a President of the United States of America”. It goes on to describe the
manner in which the president is to be chosen and to define the basic powers of the presidency.
By vesting the executive power in a single president, the framers were emphatically rejecting
proposals for collective leadership, most of which aimed to avoid undue concentration of power
in the hands of one individual. Most of the framers were anxious to provide for “energy” in the
executive and to have a president capable of taking quick and aggressive action. They believed
that a powerful executive would help to protect the nation’s interests with regards to other
nations and promote the federal government’s interests relative to those of the states.
Article II, Section 1, defines the manner in which the president is to be chosen. This odd
sequence says that something about the difficulty to the delegates to the Constitutional
Convention were having over how to give power to the executive and at the same time, balance
that said power with limitations. This conflict reflected the twin struggles etched in the memories
of the founding generation—against the powerful executive authority of King George III and the
dismal low energy of the government under the Articles of Confederation. Some delegates
wanted the president to be selected by, and thus responsible to, Congress. Others preferred that
the president be elected directly by the people. However, by adopting a scheme of indirect
election through an electoral college, in which the electors would be selected by the state
legislatures, the framers hoped to achieve a “republican” solution: a strong president responsible
to state and national legislators rather than directly to the electorate.
Sections 2 and 3 of Article I outline the powers and duties of the president. These sections
identify two sources of presidential power. One source is the specific language of the
Constitution. For example, the president is authorized to make treaties, grant pardons and
nominate judges and other public officials. These specifically defined powers, called the
expressed powers (the powers that the constitution explicitly grants to the federal government)
of the office, cannot be revoked by Congress or any other agency without an amendment to the
Constitution. Other expressed powers include the power to receive ambassadors and to command
the nation’s military forces.
In addition to establishing the president’s expressed powers, Article II declares that the president
“shall take care that the Laws be faithfully executed”. Since the laws are enacted by Congress,
this implies that Congress is to delegate the president the power to implement or execute its will.
Powers given to the president by Congress are called delegated powers (Constitutional powers
assigned to one branch of the government but exercised by another branch with the expressed
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permission of the first). In principle, Congress delegates to the president only the power to
identify or develop the means to carry our congressional decisions. So, for example, if Congress
determines that the air quality should be improved, it might delegate to the executive branch the
power to determine the best means of improvement as well as the power to implement the
process (although this is only in practice, as numerous other stakeholders would be involved).
As it delegates power to the executive branch, Congress substantially enhances the importance of
the presidency. In most cases, Congress delegates power to executive agencies rather than
directly to the president. As we will see, however, contemporary presidents have found ways to
capture a good deal of this delegated power for themselves.
Presidents have claimed a third source of institutional power beyond expressed and delegated
powers. These inherent powers (Powers claimed by a president that are not expressed in the
Constitution but are said to stem from “the rights, duties and obligations of the presidency”,
claimed most during war and national emergencies) are not specified in the Constitution. They
are most often asserted by presidents in times of war or national emergency.
For example, after the fall of Fort Sumter and the outbreak of the Civil War, President Lincoln
issued a series of executive orders for which he had no clear legal basis. Without calling
Congress into session, Lincoln combined the state militias into a national volunteer force, called
for 40,000 new volunteers, enlarged the regular army and navy, diverted $2 million in unspent
appropriations to military needs, etc. Lincoln asserted that these extraordinary measures were
justified by the president’s inherent power to protect the nation.
Military and Domestic Defense Power:
The president’s military powers are among the most important that the chief executive exercises.
The position of commander-in-chief (The power of the president as commander of the national
military and the state national guard units) makes the president the highest military officer in the
Untied States, with control of the entire military establishment. The president is also the head of
the nation’s intelligence hierarchy, including the FBI, the CIA, and a host of other lesser-known
but very powerful international and domestic security agencies.
The president’s military powers extend into the domestic sphere. Although Article IV, Section 4
states that the “United States shall protect… every state… against Invasion… and… domestic
violence”, Congress has made this an explicit presidential power through statutes directing the
president as commander in chief to discharge these obligations. The constitution restrains the
president’s use of domestic force by providing that a state legislature or a governor must request
federal troops before the president can send them into state to provide public order. Yet, this
proviso is not absolute. First, presidents are not obligated to deploy national troops merely
because the state legislature or governor makes such a request. And more importantly, presidents
may deploy troops without a specific request if they consider it necessary to maintain an
essential national service, to enforce a federal judicial order, or to protect federally guaranteed
rights. For example, the case of the Little Rock Nine.
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Military emergencies have also led to the expansion of the domestic powers of the executive
branch. This was true during World Wars I and II and during the ongoing “war on terrorism” as
well. Within a month of the 9/11 attacks, the White House drafted, and Congress enacted the
USA PATRIOT Act, expanding the power of government agencies to engage in domestic
surveillance activities and restricting judicial review of such efforts.
The following year, Congress created the Department of Homeland Security, combining offices
from 22 federal agencies into one huge new cabinet department responsible for protecting the
nation from attack. The White House drafted the reorganization plan, but Congress weighed in to
make certain that the new agency’s workers had civil service and union protections. President
Obama signed a four-year extension of the Patriot Act in 2011. In 2015, Congress passed, and
Obama signed the USA Freedom Act, renewing expiring sections of the Patriot Act but scaling
back the domestic surveillance authority of the National Security Agency.
The presidential power to grant reprieves (cancellation or postponement of a punishment),
pardons (forgiveness of a crime and cancellation of relevant penalty) and amnesties (a pardon
extended to a group of people) as well as to “commute” or reduce the severity of sentences, gives
the president the power of life and death over individuals.
Example—Jimmy Carter, in 1977, issued an amnesty for all Vietnam War draft evaders.
The president is America’s chief representative in dealings with other nations. As “head of
state”, the president has the power to make treaties for the US (with the advice and consent of the
Senate). When President Washington received Edmond Genet as the formal emissary of the
revolutionary government of France in 1793, he transformed the power to “receive Ambassadors
and other public Ministers” into the power to “recognize” other countries. That power gives the
president the almost unconditional authority to review the claims of any new ruling groups to
determine whether they indeed control the territory and population of their country, so that they
can commit to treaties and other agreements.
In recent years, presidents have expanded the practice of using executive agreements to conduct
foreign policy. An executive agreement (an agreement between the president and another
country that has the force of a treaty but does not require the Senate’s “advice and consent”) is
often used because it does not need approval from Senate. Ordinarily, executive agreements are
used to carry out commitments already made in treaties or to arrange for matters well below the
level of policy. But when presidents have found it convenient to use an executive agreement in
place of a treaty, Congress has typically permitted it.
The most important basis of the president’s power as chief executive is found in the sections of
Article II that stipulate that the president must see that all the laws are faithfull executed and that
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