27 The President: What are the powers, structure and function of the executive branch?
Learning Objectives
- Explain the reason for the design of the executive branch and its plausible alternatives
- Analyze the way presidents have expanded presidential power and why
- Identify the limitations on a president’s power
- Explain how incoming and outgoing presidents peacefully transfer power
- Describe how new presidents fill positions in the executive branch
- Discuss how incoming presidents use their early popularity to advance larger policy solutions
- Identify the power presidents have to effect change without congressional cooperation
- Analyze how different circumstances influence the way presidents use unilateral authority
- Explain how presidents persuade others in the political system to support their initiatives
Since its invention at the Constitutional Convention of 1787, the presidential office has gradually become more powerful, giving the president more leadership options at home and abroad. The chief executive’s role has evolved as presidents have confronted challenges in domestic and foreign policy in war and peace, and with the overall rise of the federal government’s power.
Why do we need a chief executive?
The Articles of Confederation did not provide for an executive branch, although they did use the term “president” to designate the presiding officer of the Confederation Congress, who also handled other administrative duties.[1] The presidency was proposed early in the Constitutional Convention in Philadelphia by Virginia’s Edmund Randolph, as part of James Madison’s proposal for a federal government, which became known as the Virginia Plan.
Madison offered a rather sketchy outline of the executive branch, leaving unspecified whether what he termed the “national executive” would be an individual or a set of people. He proposed that Congress select the executive, whose powers and authority and even service term length were left largely undefined. He also proposed a “council of revision” consisting of the national executive and members of the national judiciary, which would review laws passed by the legislature and have the power of veto.[2]
Early deliberations agreed that the executive would be a single person, elected for a single term of seven years by the legislature, empowered to veto legislation, and subject to impeachment and removal by the legislature. William Paterson proposed an alternate model, typically referred to as the small-state or New Jersey Plan. This plan called for merely amending the Articles of Confederation to create an executive branch comprised of a committee elected by a unicameral Congress for a single term. This executive committee would be particularly weak because it could be removed from power at any point if a majority of state governors desired. Far more extreme was Alexander Hamilton’s suggestion that the executive power be entrusted to a single individual. This individual would be chosen by electors, would serve for life, and would exercise broad powers including the ability to veto legislation, negotiate treaties, grant pardons in all cases except treason, and serve as commander-in-chief of the armed forces.
Consider the Original
Letter From George Washington to Major General Robert Howe
17 August 1779
“Few men have virtue to withstand the highest bidder.“
To Major General Robert Howe; National Archives, Founders.archives.gov/documents/Washington/03-22-02-0139
Debate and discussion continued throughout the summer. Delegates eventually settled upon a single executive but could not decide how to select that person. Pennsylvania’s James Wilson first proposed the direct election of the president. When delegates rejected this, he suggested that electors, chosen throughout the nation, should select the executive. Over time Wilson’s idea gained ground with delegates who were uneasy at the idea of a legislative election and the potential for intrigue and corruption. The idea of a shorter term of service combined with eligibility for reelection also gained support. The framers struggled to find the proper balance between giving the president the necessary power to perform the job versus opening the way for a president to abuse power and act like a monarch on the other.
Soon the Electoral College emerged as the way to select a president. This process is discussed more fully in the chapter on elections. Today, the Electoral College consists of a body of 538 people called electors, each representing one of the fifty states or the District of Columbia, who formally cast votes for the election of the president and vice president. In forty-eight states and the District of Columbia, the candidate who wins the popular vote in November receives all the state’s electoral votes. In two states, Nebraska and Maine, the electoral votes are divided: The candidate who wins the popular vote in the state gets two electoral votes, but the winner of each congressional district also receives an electoral vote.
In the original design implemented for the first four presidential elections (1788–89, 1792, 1796, and 1800), the electors cast two ballots (but only one could go to a candidate from the elector’s state), and the person who received a majority won the election. The second-place finisher became vice president. Should no candidate receive a majority of the votes cast, the House of Representatives would select the president, with each state casting a single vote, while the Senate chose the vice president.
While George Washington was elected president twice with this approach, the design resulted in controversy in several later elections. These controversies resulted in the Twelfth Amendment, which couples a particular presidential candidate with that candidate’s running mate in a unified ticket.[3]
The Twelfth Amendment has worked fairly wells since. But this arrangement has not been foolproof. For example, the amendment created a separate ballot for the vice president but left the rules for electors largely intact. One of those rules states that the two votes the electors cast cannot both be for “an inhabitant of the same state with themselves.”[4] This rule means that an elector from Louisiana, for example, could not cast votes for a presidential candidate and a vice presidential candidate who were both from Louisiana; that elector could vote for only one them. The rule meant to encourage electors from powerful states to look for a more diverse pool of candidates. But what would happen in a close election where the members of the winning ticket were both from the same state?
The nation almost found out in 2000. In the presidential election of that year, the Republican ticket won the election by a very narrow electoral margin. To win the presidency or vice presidency, a candidate must get 270 electoral votes (a majority). George W. Bush and Dick Cheney won by the skin of their teeth with just 271. Both, however, were living in Texas. This should have meant that Texas’s 32 electoral votes could have gone to only one or the other. Cheney anticipated this problem and had earlier registered to vote in Wyoming, where he was originally from and where he had served as a representative years earlier.[5] It’s hard to imagine that the 2000 presidential election could have been even more complicated than it was, but thanks to that seemingly innocuous rule in Article II of the Constitution, that was a real possibility.
Despite provisions for the election of a vice president (to serve in case of the president’s death, resignation, or removal through impeachment), and apart from the suggestion that the vice president should be responsible for presiding over the Senate, the framers left the vice president’s role undeveloped. As a result, the influence of the vice presidency has varied dramatically depending on the role the vice president is given by the president.
Read about James Madison’s evolving views of the presidency and the Electoral College.
The delegates also outlined who was eligible for election and how Congress might remove the president. Article II of the Constitution delineates the requirements—the chief executive must be at least thirty-five years old and a “natural born” citizen of the United States (or a citizen at the time of the Constitution’s adoption) who has been an inhabitant of the United States for at least fourteen years.[6] While Article II also states that the term of office is four years and does not expressly limit the number of times a person might be elected president, after Franklin D. Roosevelt was elected four times (from 1932 to 1944), the new Twenty-Second Amendment limited the presidency to two four-year terms.
An important means of ensuring that no president could become tyrannical was to build into the Constitution a clear process for removing the chief executive—impeachment. Impeachment is the act of charging a government official with serious wrongdoing; the Constitution calls this wrongdoing high crimes and misdemeanors. The method the framers designed required two steps and both chambers of the Congress. First, the House of Representatives could impeach the president by a simple majority vote. In the second step, the Senate could remove him or her from office by a two-thirds majority, with the chief justice of the Supreme Court presiding over the trial. Upon conviction and removal of the president, if that occurred, the vice president would become president.
Three presidents have faced impeachment proceedings in the House; none has been both impeached by the House and removed by the Senate. In the wake of the Civil War, President Andrew Johnson faced congressional contempt for decisions made during Reconstruction. President Richard Nixon faced a likely impeachment in the House for his cover-up of key information relating to the 1972 break-in at the Democratic Party’s campaign headquarters at the Watergate hotel and apartment complex. Nixon may have also been removed by the Senate, since there was strong bipartisan consensus for his impeachment and removal. Instead, he resigned before the House and Senate could exercise their constitutional prerogatives.
The most recent impeachment was of President Bill Clinton, charged with perjury and obstruction of justice for false testimony as a defendant in a sexual harassment lawsuit. House Republicans felt his affair with intern Monica Lewinsky and initial public denial of it was worthy of impeachment. House Democrats disagreed and called for a simple censure. Clinton’s Senate trial acquitted him for lack of the two-thirds support.
Impeachment remains a rare event and removal has never occurred. The fact that a president can be impeached and removed is a reminder of the executive role in the broader system of shared powers.
The Constitution that emerged from the deliberations in Philadelphia treated the powers of the presidency concisely. The president is commander-in-chief of the armed forces of the United States, negotiate treaties with the advice and consent of the Senate, and receive representatives of foreign nations. Charged to “take care that the laws be faithfully executed,” the president was given broad power to pardon those convicted of federal offenses, except for officials removed through the impeachment process.[7]
The chief executive presents to Congress information about the state of the union; calls Congress into session when needed; vetos legislation if necessary (although a two-thirds supermajority in both houses of Congress can override that veto); makes recommendations for legislation and policy and calls on the department heads to provide reports and offer opinions.
The president also nominates federal judges, including Supreme Court justices, as well as other federal officials, and makes appointments to fill military and diplomatic posts. The are many judicial appointments and nominations of other federal officials. In recent decades two-term presidents have nominated well over three hundred federal judges while in office.[8] New presidents nominate close to five hundred top officials to their Executive Office of the President, key agencies (such as the Department of Justice), and regulatory commissions (such as the Federal Reserve Board), whose appointments require Senate majority approval.[9]
From George Washington on, presidents began acting to expand both formal and informal powers. Washington established a cabinet or group of advisors to help him administer his duties, consisting of the most senior appointed officers of the executive branch. Today, the heads of the fifteen executive departments serve as the president’s advisers.[10] As the United States sought to take a stand in the evolving European conflicts, In 1793 President Washington issued a neutrality proclamation extending his rights as diplomat-in-chief far more broadly than had at first been conceived.
Actions of the Executive
The president’s power to grow agencies like the Secret Service and the Federal Bureau of Investigation matched the growth of the federal bureaucracy. Presidents further developed the concept of executive privilege as the right to withhold information from Congress, the judiciary, or the public. This right, not enumerated in the Constitution, was first asserted by George Washington to curtail inquiry into executive branch actions.[11] The more general defense of its use by White House officials and attorneys ensures that the president can secure candid advice from his advisors and staff members.
Over time presidents have increased use of their unilateral powers, including executive orders. Constitutionally, presidents may issue executive orders 1) in order to carry out an enumerated power as commander-in-chief; 2) in order to implement laws with power specifically delegated by Congress; and 3) in order to carry on the internal business of the executive branch. Executive orders establishing rules binding on states and/or the people are constitutionally problematic. Only Congress has the authority to make laws under the constitutionally assigned separation of powers, . The president’s role is to implement the laws. Now presidents offer their own interpretation of legislation via signing statements (discussed later in this chapter) directed to the bureaucratic entity charged with implementation. For foreign policy, Congress permitted the widespread use of executive agreements to formalize international relations, so long as important matters still came through the Senate in the form of treaties.[12]
Recent presidents have continued to rely upon a broadening definition of war powers to act unilaterally at home and abroad. Finally, presidents, often with Congress’s blessing through the formal delegation of authority, have taken the lead in framing budgets, negotiating budget compromises, and at times impounding funds to advance policy objectives.
The office has grown and developers as the nation has. Whereas most important decisions were once made at the state and local levels, the increasing complexity and size of the domestic economy have led people in the United States to look to the federal government more often for solutions. concurrently the rising profile of the United States on the international stage elevates the president as the leader of the nation, as diplomat-in-chief, and as commander-in-chief. Finally, with the rise of electronic mass media, a president who once depended on newspapers and official documents to distribute information beyond an immediate audience can now bring that message directly to the people via radio, television, and social media.
Presidential Powers
A president’s powers can be divided into two categories: direct actions through the formal institutional powers of the office and informal powers of persuasion and negotiation essential to working with the legislative branch. When a president governs alone through direct action, it may break a policy deadlock or establish new grounds for action, but it may also spark opposition that might have been handled differently through negotiation and discussion. Moreover, such decisions are subject to court challenge, legislative reversal, or revocation by a successor president. What may seem to be a sign of strength is often more properly understood as an independent action in the wake of a failure through the legislative process, or an admission that such an effort would prove futile. When it comes to national security, international negotiations, or war, the president has many more opportunities to act directly and in some cases must do so when circumstances require quick and decisive action.
Domestic Policy
The president may not be able to appoint key members of his or her administration without Senate confirmation, but he or she can demand the resignation or removal of cabinet officers, high-ranking appointees (such as ambassadors), and members of the presidential staff. During Reconstruction, Congress tried to curtail the president’s removal power with the Tenure of Office Act (1867), which required Senate concurrence to remove presidential nominees who took office upon Senate confirmation. Andrew Johnson’s violation of that legislation led to his 1868 impeachment. Subsequent presidents secured legislative modifications before the Supreme Court ruled in 1926 that the Senate had no right to impair the president’s removal power.[13] In the case of Senate failure to approve presidential nominations, the president is empowered to issue recess appointments (made while the Senate is in recess) that continue in force until the end of the next session of the Senate (unless the Senate confirms the nominee).
The president also exercises the power of pardon without conditions. Once used sparingly—apart from Andrew Johnson’s wholesale pardons of former Confederates during the Reconstruction period—the pardon power has become more visible in recent decades. President Harry S. Truman issued over two thousand pardons and commutations, more than any other post–World War II president.[14] President Gerald Ford has the unenviable reputation of being the only president to pardon another president (his predecessor Richard Nixon, who resigned after the Watergate scandal). While not as generous as Truman, President Jimmy Carter also issued a great number of pardons, including several for draft dodging during the Vietnam War. President Reagan was reluctant to use the pardon, as was President George H. W. Bush. President Clinton pardoned few people for much of his presidency, but did make several last-minute controversial pardons. To date, Barack Obama has seldom used his power to pardon.[15]
Presidents may choose to issue executive orders or proclamations to achieve policy goals. Executive orders usually direct government agencies to pursue a certain course in the absence of congressional action. The executive memorandum is a more subtle version pioneered by recent presidents but attracts less attention. Many of the most famous executive orders have come in times of war or invoke the president’s authority as commander-in-chief, including Franklin Roosevelt’s order permitting the internment of Japanese Americans in 1942 and Harry Truman’s directive desegregating the armed forces (1948). The most famous presidential proclamation was Abraham Lincoln’s Emancipation Proclamation (1863), which declared slaves in areas under Confederate control to be free (with a few exceptions).
Executive orders are subject to court rulings or changes in policy enacted by Congress. During the Korean War, the Supreme Court revoked Truman’s order seizing the steel industry.[16] These orders are also subject to reversal by presidents who succeed them, and recent presidents have wasted little time reversing the orders of their predecessors. Sustained executive orders, which are those not overturned in courts, typically have some prior legitimizing authority from Congress. Without prior authority, an executive order is more likely to be overturned by a later president. Consequently this tool has become less common.
Executive Order 9066
Following the attacks at Pearl Harbor in 1941, many in the United States feared that Japanese Americans on the West Coast might form a fifth column (a hostile group working from the inside) to aid a Japanese invasion. These fears mingled with existing anti-Japanese sentiment across the country and created a paranoia over the West Coast. To calm fears and prevent any real fifth-column actions, President Franklin D. Roosevelt signed Executive Order 9066, authorizing the removal of people from military areas as necessary. When the military dubbed the entire West Coast a military area, it effectively allowed for the removal of more than 110,000 Japanese Americans from their homes. These people, many of them U.S. citizens, were moved to relocation camps in the nation’s interior for two and a half years.[17]
The overwhelming majority of Japanese Americans felt shamed by the actions of the Japanese empire and willingly went along with the policy to demonstrate their loyalty to the United States. But at least one Japanese American refused. His name was Fred Korematsu, and he went into hiding in California rather than be taken to the internment camps with his family. He was soon discovered, turned over to the military, and sent to the internment camp in Utah that held his family. But his challenge to the internment system and the president’s executive order continued.
In 1944, Korematsu’s case was heard by the Supreme Court. In a 6–3 decision, the Court ruled against him, arguing that the administration had the constitutional power to sign the order because of the need to protect U.S. interests against the threat of espionage.[18] Forty-four years after this decision, President Reagan issued an official apology for the internment and provided some compensation to the survivors. In 2011, the Justice Department went a step further by filing a notice officially recognizing that the solicitor general of the United States acted in error by arguing to uphold the executive order. (The solicitor general is the official who argues cases for the U.S. government before the Supreme Court.)[19]
What do the Korematsu case and the internment of over 100,000 Japanese Americans suggest about the extent of the president’s war powers? What does this episode in U.S. history suggest about the weaknesses of constitutional checks on executive power during times of war?
To learn more about the relocation and confinement of Japanese Americans during World War II, visit Heart Mountain online.
Presidents have also used the line-item veto and signing statements to alter or influence the application of the laws they sign. A line-item veto keeps the majority of a spending bill unaltered but nullifies specific lines of spending within it. While some states allow their governors the line-item veto, the president acquired this power only in 1996 after Congress passed a law permitting it. President Clinton used the tool sparingly. However, those entities losing the federal funding he lined out brought suit. They included the City of New York and the Snake River Potato Growers in Idaho.[20] The Supreme Court heard their claims together and just sixteen months later declared the line-item veto unconstitutional.[21] Subsequent presidents have asked Congress to draft a constitutional line-item veto law although none have succeeded.
On the other hand, signing statements are issued by a president when agreeing to legislation indicating how the chief executive will interpret and enforce that legislation. Signing statements are less powerful than vetoes, though congressional opponents have complained that they derail legislative intent. Signing statements have been used by presidents since at least James Monroe, but became far more common in recent years.
National Security, Foreign Policy, and War
Presidents are more likely to justify the use of executive orders in cases of national security or as part of their war powers. In addition to mandating emancipation and the internment of Japanese Americans, presidents have issued orders to protect the homeland from internal threats. Most notably, Lincoln ordered the suspension of the privilege of the writ of habeas corpus in 1861 and 1862 before seeking congressional legislation to undertake such an act. Presidents hire and fire military commanders; they also use their power as commander-in-chief to aggressively deploy U.S. military force. Congress rarely has taken the lead over the course of history, with the War of 1812 being the lone exception. Pearl Harbor was a salient case where Congress did make a clear and formal declaration when asked by FDR. However, since World War II, it has been the president and not Congress who has taken the lead in engaging the United States in military action outside the nation’s boundaries, most notably in Korea, Vietnam, and the Persian Gulf.
Presidents also issue executive agreements with foreign powers. Executive agreements are formal agreements negotiated between two countries but not ratified by a legislature as a treaty must be. As such, they are not treaties under U.S. law, which require two-thirds of the Senate for ratification. Treaties, presidents have found, are particularly difficult to get ratified. And with the fast pace and complex demands of modern foreign policy, concluding treaties with countries can be a tiresome and burdensome chore. That said, some executive agreements do require some legislative approval, such as those that commit the United States to make payments and thus are restrained by the congressional power of the purse. But for the most part, executive agreements signed by the president require no congressional action and are considered enforceable as long as the provisions of the executive agreement do not conflict with current domestic law.
The American Presidency Project has gathered data outlining presidential activity, including measures for executive orders and signing statements.
The Power of Persuasion
The framers of the Constitution, concerned about the excesses of British monarchial power, made sure to design the presidency within a network of checks and balances controlled by the other branches of the federal government. Such checks and balances encourage consultation, cooperation, and compromise in policymaking. This is most evident at home, where the Constitution makes it difficult for either Congress or the chief executive to prevail unilaterally, at least when it comes to constructing policy. Although much is made of political stalemate and obstructionism in national political deliberations today, the framers did not want to make it too easy to get things done without a great deal of support for such initiatives.
It is left to the president to employ a strategy of negotiation, persuasion, and compromise in order to secure policy achievements in cooperation with Congress. In 1960, political scientist Richard Neustadt put forward the thesis that presidential power is the power to persuade, a process that takes many forms and is expressed in various ways.[22] Yet the successful employment of this technique can lead to significant and durable successes. For example, legislative achievements tend to be of greater duration because they are more difficult to overturn or replace, as the case of health care reform under President Barack Obama suggests. Obamacare has faced court cases and repeated (if largely symbolic) attempts to gut it in Congress. Overturning it will take a new president who opposes it, together with a Congress that can pass the dissolving legislation.
In some cases, cooperation is essential, as when the president nominates and the Senate confirms persons to fill vacancies on the Supreme Court, an increasingly contentious area of friction between branches. While Congress cannot populate the Court on its own, it can frustrate the president’s efforts to do so. Presidents who seek to prevail through persuasion, according to Neustadt, target Congress, members of their own party, the public, the bureaucracy, and, when appropriate, the international community and foreign leaders. Of these audiences, perhaps the most obvious and challenging is Congress.
Read “Power Lessons for Obama” at this website to learn more about applying Richard Neustadt’s framework to the leaders of today.
Much depends on the balance of power within Congress: Should the opposition party hold control of both houses, it will be difficult indeed for the president to realize his or her objectives, especially if the opposition is intent on frustrating all initiatives. However, even control of both houses by the president’s own party is no guarantee of success or even of productive policymaking. For example, neither Bill Clinton nor Barack Obama achieved all they desired despite having favorable conditions for the first two years of their presidencies. In times of divided government (when one party controls the presidency and the other controls one or both chambers of Congress), it is up to the president to cut deals and make compromises that will attract support from at least some members of the opposition party without excessively alienating members of his or her own party. Both Ronald Reagan and Bill Clinton proved effective in dealing with divided government—indeed, Clinton scored more successes with Republicans in control of Congress than he did with Democrats in charge.
It is more difficult to persuade members of the president’s own party or the public to support a president’s policy without risking the dangers inherent in going public. There is precious little opportunity for private persuasion while also going public in such instances, at least directly. The way the president and his or her staff handle media coverage of the administration may afford some opportunities for indirect persuasion of these groups. It is not easy to persuade the federal bureaucracy to do the president’s bidding unless the chief executive has made careful appointments. When it comes to diplomacy, the president must relay some messages privately while offering incentives, both positive and negative, in order to elicit desired responses, although at times, people heed only the threat of force and coercion.
While presidents may choose to go public in an attempt to put pressure on other groups to cooperate, most of the time they “stay private” as they attempt to make deals and reach agreements out of the public eye. The tools of negotiation have changed over time. Once chief executives played patronage politics, rewarding friends while attacking and punishing critics as they built coalitions of support. But the advent of civil service reform in the 1880s systematically deprived presidents of that option and reduced its scope and effectiveness. Although the president may call upon various agencies for assistance in lobbying for proposals, such as the Office of Legislative Liaison with Congress, it is often left to the chief executive to offer incentives and rewards. Some of these are symbolic, like private meetings in the White House or an appearance on the campaign trail. The president must also find common ground and make compromises acceptable to all parties, thus enabling everyone to claim they secured something they wanted.
Complicating Neustadt’s model, however, is that many of the ways he claimed presidents could shape favorable outcomes require going public, which as we have seen can produce mixed results. Political scientist Fred Greenstein, on the other hand, touted the advantages of a “hidden hand presidency,” in which the chief executive did most of the work behind the scenes, wielding both the carrot and the stick.[23] Greenstein singled out President Dwight Eisenhower as particularly skillful in such endeavors.
Opportunity and Legacy
What often shapes a president’s performance, reputation, and ultimately legacy depends on circumstances that are largely out of his or her control. Did the president prevail in a landslide or was it a closely contested election? Did he or she come to office as the result of death, assassination, or resignation? How much support does the president’s party enjoy, and is that support reflected in the composition of both houses of Congress, just one, or neither? Will the president face a Congress ready to embrace proposals or poised to oppose them? Whatever a president’s ambitions, it will be hard to realize them in the face of a hostile or divided Congress, and the options to exercise independent leadership are greater in times of crisis and war than when looking at domestic concerns alone.
Then there is what political scientist Stephen Skowronek calls “political time.”[24] Some presidents take office at times of great stability with few concerns. Unless there are radical or unexpected changes, a president’s options are limited, especially if voters hoped for a simple continuation of what had come before. Other presidents take office at a time of crisis or when the electorate is looking for significant changes. Then there is both pressure and opportunity for responding to those challenges. Some presidents, notably Theodore Roosevelt, openly bemoaned the lack of any such crisis, which Roosevelt deemed essential for him to achieve greatness as a president.
People in the United States claim they want a strong president. What does that mean? At times, scholars point to presidential independence, even defiance, as evidence of strong leadership. Thus, vigorous use of the veto power in key situations can cause observers to judge a president as strong and independent, although far from effective in shaping constructive policies. Nor is such defiance and confrontation always evidence of presidential leadership skill or greatness, as the case of Andrew Johnson should remind us. When is effectiveness a sign of strength, and when are we confusing being headstrong with being strong? Sometimes, historians and political scientists see cooperation with Congress as evidence of weakness, as in the case of Ulysses S. Grant, who was far more effective in garnering support for administration initiatives than scholars have given him credit for.
These questions overlap with those concerning political time and circumstance. While domestic policymaking requires far more give-and-take and a fair share of cajoling and collaboration, national emergencies and war offer presidents far more opportunity to act vigorously and at times independently. This phenomenon often produces the rally around the flag effect, in which presidential popularity spikes during international crises. A president must always be aware that politics, according to Otto von Bismarck, is the art of the possible, even as it is his or her duty to increase what might be possible by persuading both members of Congress and the general public of what needs to be done.
Finally, presidents often leave a legacy that lasts far beyond their time in office. Sometimes, this is due to the long-term implications of policy decisions. Critical to the notion of legacy is the shaping of the Supreme Court as well as other federal judges. Long after John Adams left the White House in 1801, his appointment of John Marshall as chief justice shaped American jurisprudence for over three decades. No wonder confirmation hearings have grown more contentious in the cases of highly visible nominees. Other legacies are more difficult to define, although they suggest that, at times, presidents cast a long shadow over their successors. It was a tough act to follow George Washington, and in death, Abraham Lincoln’s presidential stature grew to extreme heights. Theodore and Franklin D. Roosevelt offered models of vigorous executive leadership, while the image and style of John F. Kennedy and Ronald Reagan influenced and at times haunted or frustrated successors. Nor is this impact limited to chief executives deemed successful: Lyndon Johnson’s Vietnam and Richard Nixon’s Watergate offered cautionary tales of presidential power gone wrong, leaving behind legacies that include terms like Vietnam syndrome and the tendency to add the suffix “-gate” to scandals and controversies.
The Executive Branch: Structure and Function
It is one thing to win an election; it is quite another to govern, as many frustrated presidents have discovered. Critical to a president’s success in office is the ability to make a deft transition from the previous administration, including naming a cabinet and filling other offices. The new chief executive must also fashion an agenda, which he or she will often preview in general terms in an inaugural address. Presidents usually embark upon their presidency benefitting from their own and the nation’s renewed hope and optimism, although often unrealistic expectations set the stage for subsequent disappointment.
Transition and Appointments
In the immediate aftermath of the election, the incoming and outgoing administrations work together to help facilitate the transfer of power. While the General Services Administration oversees the logistics of the process, such as office assignments, information technology, and the assignment of keys, prudent candidates typically prepare for a possible victory by appointing members of a transition team during the lead-up to the general election. The success of the team’s actions becomes apparent on inauguration day, when the transition of power takes place in what is often a seamless fashion, with people evacuating their offices (and the White House) for their successors.
Read about presidential transitions as well as explore other topics related to the transfer of power at the White House Transition Project website.
Among the president-elect’s more important tasks is the selection of a cabinet. George Washington’s cabinet was made up of only four people, the attorney general and the secretaries of the Departments of War, State, and the Treasury. Currently, however, there are fifteen members of the cabinet, including the Secretaries of Labor, Agriculture, Education, and others. The most important members—the heads of the Departments of Defense, Justice, State, and the Treasury (echoing Washington’s original cabinet)—receive the most attention from the president, the Congress, and the media. These four departments have been referred to as the inner cabinet, while the others are called the outer cabinet. When selecting a cabinet, presidents consider ability, expertise, influence, and reputation. More recently, presidents have also tried to balance political and demographic representation (gender, race, religion, and other considerations) to produce a cabinet that is capable as well as descriptively representative, meaning that those in the cabinet look like the U.S. population (see the chapter on bureaucracy and the term “representative bureaucracy”). A recent president who explicitly stated this as his goal was Bill Clinton, who talked about an “E.G.G. strategy” for senior-level appointments, where the E stands for ethnicity, G for gender, and the second G for geography.
Once the new president has been inaugurated and can officially nominate people to fill cabinet positions, the Senate confirms or rejects these nominations. At times, though rarely, cabinet nominations have failed to be confirmed or have even been withdrawn because of questions raised about the past behavior of the nominee.[25]
Prominent examples of such withdrawals were Senator John Tower for defense secretary (George H. W. Bush) and Zoe Baird for attorney general (Bill Clinton): Senator Tower’s indiscretions involving alcohol and womanizing led to concerns about his fitness to head the military and his rejection by the Senate,[26] whereas Zoe Baird faced controversy and withdrew her nomination when it was revealed, through what the press dubbed “Nannygate,” that house staff of hers were undocumented workers. However, these cases are rare exceptions to the rule, which is to give approval to the nominees that the president wishes to have in the cabinet. Other possible candidates for cabinet posts may decline to be considered for a number of reasons, from the reduction in pay that can accompany entrance into public life to unwillingness to be subjected to the vetting process that accompanies a nomination.
Also subject to Senate approval are a number of non-cabinet subordinate administrators in the various departments of the executive branch, as well as the administrative heads of several agencies and commissions. These include the heads of the Internal Revenue Service, the Central Intelligence Agency, the Office of Management and Budget, the Federal Reserve, the Social Security Administration, the Environmental Protection Agency, the National Labor Relations Board, and the Equal Employment Opportunity Commission. The Office of Management and Budget (OMB) is the president’s own budget department. In addition to preparing the executive budget proposal and overseeing budgetary implementation during the federal fiscal year, the OMB oversees the actions of the executive bureaucracy.
Not all the non-cabinet positions are open at the beginning of an administration, but presidents move quickly to install their preferred choices in most roles when given the opportunity. Finally, new presidents usually take the opportunity to nominate new ambassadors, whose appointments are subject to Senate confirmation. New presidents make thousands of new appointments in their first two years in office. All the senior cabinet agency positions and nominees for all positions in the Executive Office of the President are made as presidents enter office or when positions become vacant during their presidency. Federal judges serve for life. Therefore, vacancies for the federal courts and the U.S. Supreme Court occur gradually as judges retire.
Throughout much of the history of the republic, the Senate has closely guarded its constitutional duty to consent to the president’s nominees, although in the end it nearly always confirms them. Still, the Senate does occasionally hold up a nominee. Benjamin Fishbourn, President George Washington’s nomination for a minor naval post, was rejected largely because he had insulted a particular senator.[27]
Other presidential selections are not subject to Senate approval, including the president’s personal staff (whose most important member is the White House chief of staff) and various advisers (most notably the national security adviser). The Executive Office of the President, created by Franklin D. Roosevelt (FDR), contains a number of advisory bodies, including the Council of Economic Advisers, the National Security Council, the OMB, and the Office of the Vice President. Presidents also choose political advisers, speechwriters, and a press secretary to manage the politics and the message of the administration. In recent years, the president’s staff has become identified by the name of the place where many of its members work: the West Wing of the White House. These people serve at the pleasure of the president, and often the president reshuffles or reforms his staff during his term. Just as government bureaucracy has expanded over the centuries, so has the White House staff, which under Abraham Lincoln numbered a handful of private secretaries and a few minor functionaries. A recent report pegged the number of employees working within the White House over 450.[28] When the staff in nearby executive buildings of the Executive Office of the President are added in, that number increases four-fold.
No Fun at Recess: Dueling Loopholes and the Limits of Presidential Appointments
When Supreme Court justice Antonin Scalia died unexpectedly in early 2016, many in Washington braced for a political sandstorm of obstruction and accusations. Such was the record of Supreme Court nominations during the Obama administration and, indeed, for the last few decades. Nor is this phenomenon restricted to nominations for the highest court in the land. The Senate has been known to occasionally block or slow appointments not because the quality of the nominee was in question but rather as a general protest against the policies of the president and/or as part of the increasing partisan bickering that occurs when the presidency is controlled by one political party and the Senate by the other. This occurred, for example, when the Senate initially refused to nominate anyone to head the Consumer Financial Protection Bureau, established in 2011, because Republicans disliked the existence of the bureau itself.
Such political holdups, however, tend to be the exception rather than the rule. For example, historically, nominees to the presidential cabinet are rarely rejected. And each Congress oversees the approval of around four thousand civilian and sixty-five thousand military appointments from the executive branch.
Gary P. Gershman. 2008. The Legislative Branch of Federal Government: People, Process, and Politics. Santa Barbara, CA: ABC-CLIO.
The overwhelming majority of these are confirmed in a routine and systematic fashion, and only rarely do holdups occur. But when they do, the Constitution allows for a small presidential loophole called the recess appointment. The relevant part of Article II, Section 2, of the Constitution reads:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The purpose of the provision was to give the president the power to temporarily fill vacancies during times when the Senate was not in session and could not act. But presidents have typically used this loophole to get around a Senate that is inclined to either obstruct or be cautious. Presidents Bill Clinton and George W. Bush made 139 and 171 recess appointments, respectively. President Obama has made far fewer recess appointments; as of May 1, 2015, he had made only thirty-two.[29] One reason this number is so low is another loophole the Senate began using at the end of George W. Bush’s presidency, the pro forma session.
A pro forma session is a short meeting held with the understanding that no work will be done. These sessions have the effect of keeping the Senate officially in session while functionally in recess. In 2012, President Obama decided to ignore the pro forma session and make four recess appointments anyway. The Republicans in the Senate were furious and contested the appointments. Eventually, the Supreme Court had the final say in a 2014 decision that declared unequivocally that “the Senate is in session when it says it is.”[30]
For now at least, the court’s ruling means that the president’s loophole and the Senate’s loophole cancel each other out. It seems they have found the middle ground whether they like it or not.
What might have been the legitimate original purpose of the recess appointment loophole? Do you believe the Senate is unfairly obstructing by effectively ending recesses altogether so as to prevent the president from making appointments without its approval? Are you aware that both parties resort to such tactics when in power and complain when they are in the minority?
The most visible, though arguably the least powerful, member of a president’s cabinet is the vice president. Throughout most of the nineteenth and into the twentieth century, the vast majority of vice presidents took very little action in the office unless fate intervened. Few presidents consulted with their running mates. Indeed, until the twentieth century, many presidents had little to do with the naming of their running mate at the nominating convention. The office was seen as a form of political exile, and that motivated Republicans to name Theodore Roosevelt as William McKinley’s running mate in 1900. The strategy was to get the ambitious politician out of the way while still taking advantage of his popularity. This scheme backfired, however, when McKinley was assassinated and Roosevelt became president.
Vice presidents were often sent on minor missions or used as mouthpieces for the administration, often with a sharp edge. Richard Nixon’s vice president Spiro Agnew is an example. But in the 1970s, starting with Jimmy Carter, presidents made a far more conscious effort to make their vice presidents part of the governing team, placing them in charge of increasingly important issues. Sometimes, as in the case of Bill Clinton and Al Gore, the partnership appeared to be smooth if not always harmonious. In the case of George W. Bush and his very experienced vice president Dick Cheney, observers speculated whether the vice president might have exercised too much influence. Barack Obama’s choice for a running mate and subsequent two-term vice president, former Senator Joseph Biden, was picked for his experience, especially in foreign policy. President Obama relied on Vice President Biden for advice throughout his tenure. In any case, the vice presidency is no longer quite as weak as it once was, and a capable vice president can do much to augment the president’s capacity to govern across issues if the president so desires.[31]
Forging an Agenda
Having secured election, the incoming president must soon decide how to deliver upon what was promised during the campaign. The chief executive must set priorities, chose what to emphasize, and formulate strategies to get the job done. He or she labors under the shadow of a measure of presidential effectiveness known as the first hundred days in office, a concept popularized during Franklin Roosevelt’s first term in the 1930s. While one hundred days is possibly too short a time for any president to boast of any real accomplishments, most presidents do recognize that they must address their major initiatives during their first two years in office. This is the time when the president is most powerful and is given the benefit of the doubt by the public and the media (aptly called the honeymoon period), especially if he or she enters the White House with a politically aligned Congress, as Barack Obama did. However, recent history suggests that even one-party control of Congress and the presidency does not ensure efficient policymaking. This difficulty is due as much to divisions within the governing party as to obstructionist tactics skillfully practiced by the minority party in Congress. Democratic president Jimmy Carter’s battles with a Congress controlled by Democratic majorities provide a good case in point.
The incoming president must deal to some extent with the outgoing president’s last budget proposal. While some modifications can be made, it is more difficult to pursue new initiatives immediately. Most presidents are well advised to prioritize what they want to achieve during the first year in office and not lose control of their agenda. At times, however, unanticipated events can determine policy, as happened in 2001 when nineteen hijackers perpetrated the worst terrorist attack in U.S. history and transformed U.S. foreign and domestic policy in dramatic ways.
Moreover, a president must be sensitive to what some scholars have termed “political time,” meaning the circumstances under which he or she assumes power. Sometimes, the nation is prepared for drastic proposals to solve deep and pressing problems that cry out for immediate solutions, as was the case following the 1932 election of FDR at the height of the Great Depression. Most times, however, the country is far less inclined to accept revolutionary change. Being an effective president means recognizing the difference.[32]
The first act undertaken by the new president—the delivery of an inaugural address—can do much to set the tone for what is intended to follow. While such an address may be an exercise in rhetorical inspiration, it also allows the president to set forth priorities within the overarching vision of what he or she intends to do. Abraham Lincoln used his inaugural addresses to calm rising concerns in the South that he would act to overturn slavery. Unfortunately, this attempt at appeasement fell on deaf ears, and the country descended into civil war. Franklin Roosevelt used his first inaugural address to boldly proclaim that the country need not fear the change that would deliver it from the grip of the Great Depression, and he set to work immediately enlarging the federal government to that end. John F. Kennedy, who entered the White House at the height of the Cold War, made an appeal to talented young people around the country to help him make the world a better place. He followed up with new institutions like the Peace Corps, which sends young citizens around the world to work as secular missionaries for American values like democracy and free enterprise.
Listen to clips of the most famous inaugural address in presidential history at the Washington Post website.
Questions to Consider
- How did presidents who served in the decades directly after Washington expand the powers of the presidency?
- What factors contributed to the growth of presidential power in the twentieth century?
- How do presidents work to fulfill their campaign promises once in office?
- How have the methods presidents use to negotiate with their party and the opposition changed over time?
- What strategies can presidents employ to win people over to their way of thinking?
- What are the opportunities and limitations for presidential leadership in the contemporary political system?
- How have presidents used their position to increase the power of the office?
- What role has technology played increasing the power and reach of presidents?
- Under what conditions will presidents use direct action?
- When might they prefer passing a formal policy through Congress as a bill?
- What do the conditions under which presidents decide to make public pleas suggest about the limits of presidential power?
Terms to Remember
cabinet–a group of advisors to the president, consisting of the most senior appointed officers of the executive branch who head the fifteen executive departments
executive agreement–an international agreement between the president and another country made by the executive branch and without formal consent by the Senate
Executive Office of the President–the administrative organization that reports directly to the president and made up of important offices, units, and staff of the current president and headed by the White House chief of staff
executive order–a rule or order issued by the president without the cooperation of Congress and having the force of law
executive privilege–the president’s right to withhold information from Congress, the judiciary, or the public
impeachment–the act of charging a government official with serious wrongdoing, which in some cases may lead to the removal of that official from office
line-item veto–a power created through law in 1996 and overturned by the Supreme Court in 1998 that allowed the president to veto specific aspects of bills passed by Congress while signing into law what remained
Office of Management and Budget (OMB)–an office within the Executive Office of the President charged with producing the president’s budget, overseeing its implementation, and overseeing the executive bureaucracy
rally around the flag effect–a spike in presidential popularity during international crises
signing statement–a statement a president issues with the intent to influence the way a specific bill the president signs should be enforced
- Articles of Confederation, Article XI, 1781. ↵
- Jack Rakove and Susan Zlomke. 1987. "James Madison and the Independent Executive," Presidential Studies Quarterly 17, No. 2: 293–300. ↵
- Tadahisa Kuroda. 1994. The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787-1804. Westport, CT: Greenwood Publishing. ↵
- U.S. Constitution, Article II, Section 1. ↵
- Alan Clendenning, "Court: Cheney Is Wyoming Resident," ABC News, 7 December 2000, http://abcnews.go.com/Politics/story?id=122289&page=1 (May 1, 2016). ↵
- U.S. Constitution, Article II, Section 1. ↵
- U.S. Constitution, Article II, Section 3. ↵
- "Judgeship Appointments By President," http://www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president (May 1, 2016). ↵
- G. Calvin Mackenzie, "The Real Invisible Hand: Presidential Appointees in the Administration of George W. Bush," http://www.whitehousetransitionproject.org/wp-content/uploads/2016/03/PresAppt-GWB.pdf (May 1, 2016). ↵
- https://www.justice.gov/ about (May 1, 2016). ↵
- Mark J. Rozel. 1999. "’The Law': Executive Privilege: Definition and Standards of Application," Presidential Studies Quarterly 29, No. 4: 918–30. ↵
- Glen S. Krutz and Jeffrey S. Peake. 2009. Treaty Politics and the Rise of Executive Agreements: International Commitments in a System of Shared Powers. Ann Arbor: University of Michigan Press. ↵
- Myers v. United States, 272 U.S. 52 (1925). ↵
- "Bush Issues Pardons, but to a Relative Few," New York Times, 22 December 2006, http://www.nytimes.com/2006/12/22/washington/22pardon.html. ↵
- U.S. Department of Justice. "Clemency Statistics." https://www.justice.gov/pardon/clemency-statistics (May 1, 2016). ↵
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). ↵
- Julie Des Jardins, "From Citizen to Enemy: The Tragedy of Japanese Internment," http://www.gilderlehrman.org/history-by-era/world-war-ii/essays/from-citizen-enemy-tragedy-japanese-internment (May 1, 2016). ↵
- Korematsu v. United States, 323 U.S. 214 (1944). ↵
- Ilya Somin, "Justice Scalia on Kelo and Korematsu," Washington Post, 8 February 2014, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/08/justice-scalia-on-kelo-and-korematsu/. ↵
- Glen S. Krutz. 2001. Hitching a Ride: Omnibus Legislating in the U.S. Congress. Columbus, OH: Ohio State University Press. ↵
- Clinton v. City of New York, 524 U.S. 417 (1998). ↵
- Richard E. Neustadt. 1960. Presidential Power and the Modern Presidents New York: Wiley. ↵
- Fred I. Greenstein. 1982. The Hidden-Hand Presidency: Eisenhower as Leader. New York: Basic Books. ↵
- Stephen Skowronek. 2011. Presidential Leadership in Political Time: Reprise and Reappraisal. Lawrence, KS: University Press of Kansas. ↵
- Glen S. Krutz, Richard Fleisher, and Jon R. Bond. 1998. "From Abe Fortas to Zoe Baird." American Political Science Review 92, No. 4: 871–882. ↵
- Michael Oreskes. 1989. "Senate Rejects Tower, 53–47; First Cabinet Veto since ‘59; Bush Confers on New Choice," New York Times, 10 March 1989, http://www.nytimes.com/1989/03/10/us/senate-rejects-tower-53-47-first-cabinet-veto-since-59-bush-confers-new-choice.html. ↵
- Mark J. Rozell, William D. Pederson, Frank J. Williams. 2000. George Washington and the Origins of the American Presidency. Portsmouth, NH: Greenwood Publishing Group, 17. ↵
- Jennifer Liberto, "It pays to work for the White House," CNN Money, 2 July 2014, http://money.cnn.com/2014/07/02/news/economy/white-house-salaries/ (May 1, 2016). ↵
- Bruce Drake, "Obama lags his predecessors in recess appointments," 13 January 2014, http://www.pewresearch.org/fact-tank/2014/01/13/obama-lags-his-predecessors-in-recess-appointments/ (May 1, 2016). ↵
- National Labor Relations Board v. Canning, 573 U.S. ___ (2014). ↵
- Amy C. Gaudion and Douglas Stuart, "More Than Just a Running Mate," The New York Times, 19 July 2012, http://campaignstops.blogs.nytimes.com/2012/07/19/more-than-just-a-running-mate/. ↵
- Stephen Skowronek. 2011. Presidential Leadership in Political Time: Reprise and Reappraisal. Lawrence: University Press of Kansas. ↵