26 September 2008
The Powers of the Presidency
By Michael Jay Friedman
The U.S. Constitution outlines the president’s authority but is flexible enough to allow each incumbent to define the scope of presidential powers according to his own philosophy of governance and the needs of the times.
Michael Jay Friedman is an editor in the Bureau of International Information Programs at the U.S. Department of State. He holds a doctorate in U.S. diplomatic and political history.
The men who have held the presidency of the United States — and at this writing they have all been men — have expressed divergent views of their experience. Grover Cleveland (1885-1889 and 1893-1897) suggested, “After the long exercise of power, the ordinary affairs of life seem petty and commonplace.” Theodore Roosevelt (1901-1909) so enjoyed the “bully pulpit” that he came out of retirement to run again for the presidency. But for James K. Polk (1845-1849), the presidency was “no bed of roses.” And Ulysses S. Grant (1869-1877) flatly declared, “I never wanted to get out of a place as much as I did to get out of the presidency.”
What are the powers of the president and how have they evolved over time? Generations of American schoolchildren have learned that Congress makes the laws and the president enforces them. This helps, but only a little. The U.S. Constitution is the source of the president’s authority, but it is a concise document, more of an outline than a blueprint (the proposed European Union constitution is more than 35 times longer). It leaves room for each president — subject always to “checks and balances” of the legislative and judicial branches — to interpret the breadth of his powers in accordance with his personal philosophy of governance and the demands of the times.
Article II of the Constitution begins, “The executive power shall be vested in a President of the United States of America.” It states the term of office — four years — and lists several categories of presidential powers:
• The president is “Commander in Chief” of the armed forces;
• The president may grant reprieves and pardons for legal offenses;
• The president may make treaties, with the “advice and consent” of two-thirds of “Senators present”; appoint ambassadors and Supreme Court justices, with majority Senate confirmation; and appoint all other “public Ministers … and Officers of the United States”;
• The president shall “from time to time … recommend to [Congress] such measures as he shall judge necessary and expedient”;
• The president may veto legislation passed by Congress, subject to override by a two-thirds vote of each house (Article I, Section 7).
While other constitutional provisions limit generally the powers of the entire federal government including the president, Article II is flexible. President Calvin Coolidge (1923-1929) limited his exercise of presidential power to an occasional nudge in the right direction. As Coolidge once described his governing philosophy, “We have enough laws already, I don’t need to sign any more.”
But even those presidents determined to interpret their powers strictly found that affairs of state spurred them toward greater assertiveness. The first president, George Washington (1789-1797), at first interpreted literally the provision that he obtain Senate “advice” while negotiating treaties. On August 22, 1789, Washington accordingly presented himself to the Senate — sword in hand — to request its specific instructions for negotiating a contemplated treaty with the Creek Indians. As senators filed ever more contradictory motions, John Quincy Adams, himself a future president (1825-1829), confided the result to his diary:
When Washington left the Senate chamber he said he would be damned if he ever went there again. And ever since that time treaties have been negotiated by the executive before submitting them to the consideration of the Senate.
While the powers of the presidency have waxed and waned within their broad constitutional limits, domestic and foreign challenges have sparked a trend toward greater executive authority. During the Great Depression of the 1930s, for example, President Franklin D. Roosevelt (1933-1945) secured congressional approval of many New Deal programs. These were administered by new executive branch agencies that remade much of the nation’s economy even as they augmented presidential power. America’s 20th-century emergence as a great power similarly enhanced the president’s commander-in-chief power.
These developments have not gone uncontested. In 1935 the Supreme Court declared unconstitutional the National Recovery Act, a crucial piece of New Deal legislation, over Roosevelt’s vehement objection. And the limits of a president’s authority to deploy American troops absent a congressional declaration of war remains politically contentious.
The complexities of modern legislation have further augmented the presidency. Consider the Safe Drinking Water Act of 1974. Congress wished to establish minimum standards of healthfulness for public drinking water but delegated the responsibility for setting those standards to the Environmental Protection Agency (EPA), an administrative agency in the executive branch. Congress routinely authorizes EPA and its hundreds of sister agencies to promulgate and enforce regulations that elaborate on the statutory requirements. Congress may overturn any regulation, but there are more than Congress could ever review. In this way, the modern “administrative state” has shifted additional responsibilities to the executive branch — and to the president.
Constitutionally limited yet sufficiently flexible and robust to address modern challenges, the presidency remains one key to the American people’s ongoing experiment in self-government.
