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5 - The American Presidency Individuals, Institutions, and Executive Power

Presidential Power and the War on Terror

The September 11, 2001 Attacks

  • Terrorist Incident: Hijacked four U.S. passenger planes by terrorists associated with Osama bin Laden's Al Qaeda.

    • Two planes targeted the World Trade Center in New York City.
    • One plane hit the Pentagon.
    • The fourth plane crashed in Pennsylvania after passengers intervened.

  • Immediate Response: President George W. Bush issued executive orders to address the crisis, including:

    • Calling Ready Reserve of the Armed Forces to active duty.
    • Seizing financial assets and blocking transactions related to suspected terrorism support.
    • Establishing the Office of Homeland Security.

The Capture of Yaser Hamdi

  • Background: American citizen captured in Afghanistan by the Northern Alliance for allegedly aiding the Taliban.
  • Legal Battle: Hamdi's detention without legal representation or court challenge led to his father filing a habeas corpus petition, arguing constitutional rights violations.

Presidential Actions in the War on Terror

  • Continued Use of Executive Power: Both President Bush and Obama utilized executive actions against terrorism, including drone strikes.
  • Case of Anwar al-Awlaki:
    • American citizen targeted and killed in Yemen by drone strikes.
    • Considered a significant threat due to his influence and recruitment activities for al-Qaeda.
    • The killing raised debates over the legality and ethics of targeting American citizens without trial.
  • Constitutional Concerns: Actions taken under the guise of national security raised questions about constitutional rights and executive power.
  • Authorization for Use of Military Force (AUMF):
    • Legal framework used to justify military actions against terrorists.
    • Critics argue it provides too much power to the president without sufficient congressional oversight.

Key Points

  • Presidential Power Expansion: Post-9/11 actions reflect a significant expansion of executive power in the context of national security.
  • Legal and Ethical Controversies: The use of drone strikes, especially against American citizens, and the detention of suspects without trial, have sparked significant debate.
  • Ongoing Impact of AUMF: More than a decade after its passage, the AUMF continues to serve as a basis for military actions against terrorism, prompting calls for reevaluation.

The Constitution and the American Presidency

Selection, Qualifications, and Term Length

  • Debate on Presidential Selection: Concerns among less populous states about being overshadowed by more populous states led to the establishment of the Electoral College system for presidential elections.
  • Presidential Term and Re-election: A four-year term was agreed upon, with the possibility of re-election. The Twenty-Second Amendment later limited presidents to two terms, with an exception for those serving more than two years of another’s term.
  • Qualifications for Presidency: Requirements include being a natural-born citizen, at least thirty-five years old, and a resident within the U.S. for fourteen years. No explicit prohibition against women candidates was made.

Federalist No. 70

  • Hamilton's Argument for a Strong Executive: Advocated for a single, energetic executive to ensure effective governance, protection against foreign attacks, and the safeguarding of liberty and property.

Presidential Powers and Roles

  • Chief Executive: Oversees the executive branch, executing laws with broad but vaguely defined powers. The Cabinet and executive orders are tools for managing the federal bureaucracy.
  • Chief Diplomat: Guides foreign policy and interacts with other nations. Has the power to make treaties and appoint ambassadors, subject to Senate ratification.
  • Legislative Leader: Influences legislation, delivers the State of the Union Address, and has veto power over Congress's bills.
  • Commander in Chief: Leads the military, highlighting the significant responsibility and authority in military and national defense matters.
  • Party Leader: Not explicitly defined but recognized as an influential role in shaping party agenda and strategy.

Pardons and Unilateral Actions

  • Presidential Pardon: Authority to forgive federal offenses, excluding impeachment, highlighting the president’s role in the criminal justice system.
  • Unilateral Presidential Actions: Include executive orders, executive agreements, and signing statements, allowing presidents to enact policy without direct congressional approval.

Executive Privilege and Foreign Policy

  • Executive Privilege: The ability to withhold information from Congress and the judiciary, emphasizing the president's need for confidential communications.
  • Foreign Policy and Executive Agreements: Enable presidents to navigate international relations more flexibly than treaties, without Senate approval.

Concerns and Critiques

  • Expansion of Presidential Power: The broad and sometimes unilateral use of executive power raises questions about the balance of power among the government's branches.
  • Impact of Unilateral Actions: Actions such as executive orders can significantly influence both domestic and foreign policies, sometimes circumventing the legislative process.

Analysis of Presidential Actions

  • Public Perception: Presidential actions, including public appearances and symbolic gestures, can significantly impact public perception and policy support.
  • Historical Examples: The use of executive orders during World War II and the strategic presentation of presidential decisions illustrate the complex role and impact of the presidency on American society and governance.

Limits on Presidential Power

Constitutional Checks and Balances

  • Division of Powers: Specific powers granted to Congress and the judiciary serve as checks on presidential authority.
  • Congressional Authority: Essential for passing laws, funding programs, and approving presidential appointments and treaties.
  • Judicial Review: The Supreme Court can overturn presidential actions that violate the Constitution.

Key Congressional Powers

  • Legislative Powers: Congress holds the power to investigate, impeach, pass budgets, and override presidential vetoes.
  • Appointment and Treaty Ratification: Requires Senate approval for judiciary appointments, cabinet secretaries, and treaty ratification.
  • War and Funding: Only Congress can declare war and allocate funds for the armed forces.

War Powers Resolution (1973)

  • Context: Response to the expansion of the Vietnam conflict and unilateral presidential military actions.
  • Provisions: Limits the president's ability to deploy armed forces without congressional consent beyond 60 days, requiring notification within 48 hours of military engagement.

Impeachment

  • Process: Initiated by a House majority vote on articles of impeachment, followed by a Senate trial presided over by the Chief Justice. Conviction and removal require a two-thirds Senate vote.
  • Purpose: Addresses "Treason, Bribery, or other high Crimes and Misdemeanors," distinct from criminal proceedings.

Judicial Checks

  • Supreme Court Authority: Can challenge and overturn executive actions, including executive orders and claims of executive privilege.
  • Notable Cases:
    • United States v. Nixon (1974): Affirmed executive privilege but required Nixon to release Watergate-related recordings.
    • Executive Order Challenges: Recent challenges to executive orders on immigration and national security have reached the Supreme Court, resulting in mixed outcomes.

Implications and Considerations

  • Balance of Power: These mechanisms ensure a balance between the branches, preventing excessive concentration of power in the executive.
  • Presidential Constraints: Despite significant authority, the president operates within a framework that requires collaboration, negotiation, and adherence to legal and constitutional standards.

The Modern Presidency in Context

The Vice Presidency

  • Constitutional Basis: Initially weak, with the Vice President serving as the runner-up in presidential elections until the Twelfth Amendment refined the selection process.
  • Roles: Presides over the Senate (rarely in practice) and succeeds the president if necessary. The Twenty-Fifth Amendment clarifies succession and temporary incapacitation procedures.

The First Spouse

  • Informal Role: Acts as an advisor and public figure without a formal government position, often focusing on specific social or policy issues.

Executive Office of the President (EOP)

  • Expansion: Grew significantly to support the presidency, especially under Franklin D. Roosevelt, marking the shift to the modern presidency.
  • Key Components: Includes the Office of Management and Budget, National Security Council, and Council of Economic Advisors, among others, serving as the president's primary source of advice and policy management.

Partisan Politics and Congress

  • Chief of Party Role: Presidents serve as de facto leaders of their parties, influencing party strategies and legislative agendas.
  • Negotiations and Bargaining: Presidents must navigate partisan dynamics in Congress, using persuasion and negotiation to advance their agendas, especially during periods of divided government.

Public Opinion and Communication

  • Bully Pulpit and Going Public: Presidents use their visibility and media access to directly appeal to the public, influencing policy debates and legislative priorities.
  • Impact of Public Opinion: Public approval ratings can significantly enhance or limit a president's effectiveness and leverage in political negotiations.

Presidential Approval Ratings

  • Significance: Reflects public support and can impact a president's ability to govern effectively.
  • Factors Affecting Approval: Include handling of crises, economic performance, and major legislative achievements. Approval typically fluctuates, with potential spikes during national crises or declines due to policy failures or scandals.

DACA and Immigration Policy

  • Deferred Action for Childhood Arrivals (DACA): An executive order by President Obama aimed at protecting undocumented immigrants brought to the U.S. as children.
  • Partisan Responses: Garnered support and criticism along party lines, highlighting the challenges of immigration reform and executive action in a divided political environment.
  • Legal and Political Challenges: Faced opposition and legal challenges, with its future often uncertain, demonstrating the contentious nature of executive orders and the complex interplay between the executive branch, Congress, and the judiciary in policy implementation.

The War on Terror and Presidential Power

Supreme Court Restrictions on Presidential Power

  • Hamdi v. Rumsfeld (2002): The Supreme Court challenged the notion of unchecked presidential authority during wartime, affirming that war does not grant the president a "blank check" regarding the rights of citizens. Yaser Hamdi, an American citizen detained in Guantanamo Bay, was entitled to a hearing before a neutral decision maker, emphasizing the importance of constitutional rights even in times of national security concerns.

The Paradox of Power

  • Presidential Actions: The ability to act decisively in crisis situations is a unique presidential tool, highlighted during the War on Terror. Yet, this power comes with constitutional limitations and ethical debates, especially regarding the treatment of American citizens accused of terrorism.
  • Anwar al-Awlaki Case: Illustrates the complexities of presidential decision-making in the War on Terror. The targeted drone strike against al-Awlaki, an American citizen, by President Obama's administration raised questions about the extent of executive power in targeting citizens without trial.
  • Historical Context: The use of drone strikes to eliminate suspected terrorists, including American citizens, has been part of the U.S. strategy in combating terrorism. These actions underscore the tension between national security imperatives and constitutional protections.

Reflections on Presidential Power

  • Constitutional Provisions and Challenges: The framers designed the presidency to be strong and decisive, yet constrained by checks and balances to prevent the emergence of an elected monarchy.
  • Public Expectations vs. Constitutional Limits: Americans expect their presidents to lead effectively, particularly in times of crisis, while adhering to the constitutional framework and respecting civil liberties.
  • Partisan Politics and Leadership: The presidency is inherently political, situated within a system designed to balance power among branches of government. Yet, there is a public expectation for the president to rise above partisan politics and unite the nation, especially during crises.
  • Rights of Citizens Accused of Terrorism: The debate over how to balance national security interests with the constitutional rights of citizens accused of terrorism continues to be a contentious issue, reflecting broader concerns about executive power, due process, and civil liberties.
  • Presidential Authority in National Security: The War on Terror has tested the limits of presidential power, challenging the legal and ethical boundaries of executive actions in the name of national security.