08 Presidency(3)

Presidency

Topic 8

Historic Development -

initially conceived with limited powers, though

stronger than executive in Articles of

Confederation

e.g. not much in way of ‘presidential program’ initially

no presidential budget for whole executive

Cabinet departments dealt directly with Congress

e.g., limited view of veto power initially – changed

with Jackson in 1820s

Became much more powerful over time

Wars

(as see now) Presidents become more powerful

in wartime. Give up some powers afterward but

not all.

Great power beginning early 1900s – only real

superpower currently

Expanding popular expectations of

government action on economy, natural

disasters, etc.

Now President = ‘spark plug’ of

government , possibly dominant figure in

government

Recall EC = “filtering device” in the Constitution Founders did not trust public with key decision on presidential selection --

George Mason (who attended the Constitutional Convention): “It would be as unnatural to refer the choice...[of president] to the people as it would to refer the choice of colors to a blind man!”

{EC map p. 376}

Electoral College (EC) and

Presidential Selection

Copyright © 2013 Cengage

allotment formula for EC votes =

# representatives + # senators

so minimum of 3/ state with no maximum [CA’s 55 =

current biggie]

Total EC = 435 + 100 + 3 [DC] = 538

each party selects actual electors running in its

name in each state

at November election every four years (‘12 last)

voters cast ballots for slate of electors pledged to

a particular presidential candidate

names of electors not usually on ballot, just name of

candidate they are pledged to support

up to each state to decide on how to divide

up its electoral votes based on the popular

vote for each candidate –

“winner-take-all” used in 48 states + in DC

plurality of popular vote yields ALL of electoral votes

e.g., Florida ’00: 2,912,253 {48.8%} Gore/ 2,912,790

{48.8%} Bush/ & 138,067 {2.4%} others all 25 electoral

votes for Bush

district system in two states (Maine & Neb)

separate electoral vote race in each congressional

district +

two remaining electoral votes for candidate with

statewide plurality

Nebraska example: 3 districts 5 electoral votes {EV}

Dem carries districts #1 and #2

Rep candidate carries district #3

Rep candidate gets last two EV’s here for carrying the state overall

#1

district

#2

district

#3

district

TOTAL

NEB

1000

votes

Dem

2000

votes

Dem

2000

votes

Dem

5000

votes

Dem

500

votes

Rep

1500

votes

Rep

4000

votes

Rep

6000

votes

Rep

DEM

wins 1

EV

DEM

wins 1

EV

REP

wins 1

EV

Rep

wins 2

EV

winning electors gather in their state capital a few weeks later

usually predictable as electors cast their electoral votes for the candidates they are pledged to support but …

“faithless elector” problem in which elector does not vote as pledged

most recent in 2004

no federal law against this!

against the law in some states but these laws likely to be unconstitutional

results from state capitals sent to

Congress for official count

to be elected P, candidate needs a majority

of the electoral votes = 270 (or more) out of

538

similarly, VP needs a majority as well on a

separate ballot

sworn into office a few weeks later

Note: candidate who gets a majority of the

electoral vote (& thus elected as P or VP)

may well not have a majority of the popular

vote

possible (with major + minor candidates on

ballot) for winner to get electoral vote majority

with only a plurality of the popular vote

that is, P or VP comes in leading the popular vote but

not with a majority of popular vote

not a big deal

However, possible to get electoral vote

majority (i.e., elected President) without

even getting a plurality of the popular

vote (i.e., coming in 2nd or lower in

popular vote) & that would be considered

a problem

e.g., 1876 Hayes v Tilden - Hayes got disputed

185-184 electoral vote majority despite losing

popular vote

e.g., 1888 Harrison v Cleveland - Harrison won

with 233 - 168 electoral vote majority despite

losing popular vote

e.g., 2000 Bush v Gore - Bush won with 271-266

electoral vote majority while losing popular

vote

48.4% Gore/ 47.9% Bush/ 3.7% Nader & others

getting back to electoral vote rather than

popular vote

if no candidate gets an electoral vote majority

{270}, need added steps after Congress counts

these votes:

House selects P

Senate selects VP

H: selection of P if no electoral vote winner

only top 3 candidates for P (in electoral votes)

considered

each STATE has a vote; (CA = AK!)

to be elected P must get majority of the states

(26)

unclear what criteria representatives would use:

? Candidate who carried their district?

? Candidate who carried their state?

? Candidate of their party?

? Candidate who offers biggest payoff?

note: H has elected P twice –

1800 -- due to defect in original language of

Constitution producing a tie in electoral votes

between P {Jefferson} & VP {Burr}

H picked Jefferson as P

1824 -- Jackson got plurality but not majority of

electoral vote

H picked J.Q. Adams who had come in 2nd in

electoral votes to Jackson; Jackson &

followers outraged at deals made

S: selection of VP if no electoral vote winner

only top 2 candidates for VP (in electoral votes) considered

each SENATOR gets a vote (not each state)

to be elected VP, need majority of Senate (51)

note: if S selects VP but H deadlocks on P, then VP becomes Acting President until H elects P

note: if neither VP nor P elected by start of new term, then Speaker of H becomes Acting President

?? Electoral College

Term Limitations

none in original Constitution - unnecessary given modest office + hope Washington would stay on

precedent for informal two term limit set by Washington tired after 2 terms & thought unwise to continue

Franklin Roosevelt had two regular terms (1932, 1936) + two wartime terms (1940, 1944) FDR died shortly after final election and replaced by VP

Harry Truman

this led to 22nd Amendment which set a formal two term limit on P (ratified 1951) note: consecutive or interrupted terms/ no VP limit!

Line of Succession – fill presidency if office

is ‘vacant’ with VP stepping in

P is vacant if

P dies

P resigns

P impeached and convicted

Impeachment:

P (& other non-military officials) may be impeached for bribery, treason, or “other high crimes and misdemeanors” Bribery & treason simple

High crimes and misdemeanors = continuing debate on intent of Founders

House passes “bill of impeachment” with charges Simple majority vote needed to impeach

Senate conducts trial 2/3rd majority to convict and remove from office

Chief Justice presides if P is on trial

S may also disqualify convicted officials from future federal office

Andrew Johnson – 1868

allegation – violated Tenure of Office Act by

firing Secretary of War Stanton

actual problem was political = disagreement

on how to treat defeated southern states

bill of impeachment passed H but S failed to

convict by 1 vote

note: 2/3rds majority needed in S

Richard Nixon – 1974

allegation – obstruction of justice on

investigation of Watergate break-in of

Democratic office

House Judiciary Committee voted for bill of

impeachment but Nixon resigned before

further House action or Senate action

Copyright 2010 Cengage

Learning 24

© 2004 AP/Wide World Photos

Bill Clinton - 1998/9

allegation - obstruction of justice & perjury before grand jury

grand jury originally created to investigate a land deal when Clinton was governor of Arkansas

investigation expanded later to include Clinton testimony & actions in suit filed by Paula Jones concerning sexual harassment

House Judiciary Committee - approved bill of impeachment/ H approved 2 (of 4) in bill/ S did not convict on either though one article did get a majority (but not 2/3rds majority) while other had tie vote


Learning 26

© AP/Wide World Photos

Monica Lewinsky Testifying Under

Oath

Presidential Succession After VP

Succession Act of 1886-

Early effort to clarify succession if no VP

available (death, resignation, impeachment &

conviction)

Succession Act of 1947 –

#1 House Speaker

#2 President Pro-Tempore of Senate

#3 Cabinet in order of creation dates of

departments [State, Treasury, War/Defense,

Justice, in first cabinet and others later]


Learning 28

Line of Succession

to the Presidency

25th Amendment (1967) try avoid using Succession Act of 1947 by replacing VP

if office is vacant:

P nominates new VP if vacancy

House and Senate approve by majority vote, acting separately on nomination

Use of 25th Amendment not long after ratified: Spiro Agnew resigned as Nixon VP (1973)

Gerald Ford became VP

Ford became P when Nixon resigned, so VP vacant again Nelson Rockefeller became VP (1974) when nominated by Ford & confirmed by Congress

note: by end of 1974 neither P nor VP elected to office!

Presidential Disability Issue Office not vacant but P not able to carry out

duties

Handled for first time by 25th Amendment

1) P declares own disability –

VP becomes Acting P until P says he’s OK again

1985: President Reagan informally hands off power to VP George Bush [sr] during colon cancer surgery

2002 & 2007: President Bush [jr] invokes 25th Amendment during colon procedure

!! 25th Amendment = the ‘Colon Amendment’!!

2)P says nothing but VP + Cabinet majority

declare P disabled

VP becomes acting P until P says he’s OK

3)P says he’s OK but VP+ Cabinet majority

declare P disabled!

P remains as P unless 2/3 of House and of

Senate vote otherwise; in that case, VP

becomes Acting P

Note on disability & 25th Amendment:

Amendment was NOT used in the one

situation that would have been most useful –

1981 assassination attempt by John Hinckley

on President Reagan

VP Bush (sr) out of town and Secretary of

State (Haig) mistakenly claiming he was in

charge at the White House

Exactly the situation for which 2nd provision of

Amendment written

VP & majority of Cabinet declare P disabled

Reagan Just Prior to

Assassination Attempt

Confusion as Shooter (Hinckley)

Apprehended after Assassination Attempt

The Powers of the President

Powers of the President

Alone

Powers the President

Shares with the Senate

Powers the President

Shares with Congress

as a Whole


A military officer carrying “the football” – the

briefcase containing the secret codes the

president can use to launch a nuclear attack. p.

370

Mark Wilson/Getty Images

News/Getty Images

Expanded Powers from Court

Interpretations of Constitution “the executive power” given to the P

-- issue executive orders to executive branch

P takes care “that the laws be faithfully

executed”

-- use troops to enforce court orders

P is “commander-in-chief” of armed forces

-- initially limited idea of this power

P as leader of armed forces during declared war

P takes the initiative to lead if US attacked

-- later sweeping powers to use force or threats

Power to say ‘No’

I. VETO

bill passes Congress

P options:

1) sign bill -- bill becomes law

2) disapprove or veto it -- bill sent back to

Congress for possible override attempt

(with 2/3rd majority in each chamber

needed to override)

= regular veto

3) ignore the bill – bill becomes law if

Congress in session but does not become

law if Congress adjourned

= absolute or pocket veto

I.7.2. “If any bill shall not be returned by

the President...the same shall be a

law...unless the Congress by their

adjournment prevent its return, in which

case it shall not be a law.”

{On vetoes see Table 4.3}


Sources: Norman J. Ornstein, Thomas E. Mann, and Michael

J. Malbin, Vital Statistics on Congress, 2002–2003 (Washington,

D.C.: Congressional Quarterly Press, 2003), 207; The American

Presidency Project of the University of California at Santa

Barbara.

II. Executive Privilege

“executive privilege” = 2nd power to say no

assumed right for P to keep secret advice from chief advisors

not in Constitution or statutes

based on separation of powers doctrine + good administrative practices

courts have recognized a limited privilege

1973 – Nixon impeachment investigation

‘Watergate tapes’ case (U.S. v Nixon) – Supreme

Court rejected unqualified assertion of

executive privilege by P but privilege OK if

genuine need for confidentiality

1998 – Clinton impeachment investigation

Various cases –

Supreme Court rejected claims by Secret

Service, P’s counsel, & others that they could

invoke privilege without showing national

security or some other genuine need for privacy

III. Impoundment of Funds

Impoundment of funds = #3 power to say no

Impoundment = refusal by P to spend funds

Congress appropriates

Rationale – prudent administration, prevent waste

No constitutional basis for impoundment power

but long string of precedents back to Jefferson

1974 statute, however, permitted a limited impoundment

power

1972 – Nixon impounds billions of dollars

in policy fights with Congress

Congress unhappy and wrote first legislation

on impoundments:

1974 – Budget Reform Act

legal basis for impoundment for 1st time

P informs Congress and must still spend

unless both chambers OK impoundment within

45 days

IV. Signing Statements

signing statements = final power to say no

Presidents often issued statements when signed bills, but many more recently

Also, statements have shifted from general comments to 1) orders on how to implement statute

2) comments on unconstitutionality of parts

The Power to Persuade

Supplementing the formal powers of the

office, the President can also take advantage

of the fact that the office provides a “bully

pulpit” to capture public attention and

(possibly) public approval

Nonetheless, over time most presidents wear

out their welcome with the public

Initial “honeymoon” period with high hopes gives

way to disillusionment as promises unfulfilled


Note: Popularity was measured by asking every few months, “Do you approve

of the way _________ is handling his job as president?”

Source: Thomas E. Cronin, The

State of the Presidency

(Boston: Little, Brown, 1975),

110–111. Copyright © 1975 by

Little, Brown and Company, Inc.

Reprinted by permission.

Updated with Gallup poll data,

1976–2011. Reprinted by

permission of the Gallup Poll

News Service.

Copyright 2010 Cengage Learning 47

Presidential

Greatness

War Powers & War Powers Act (1973)

War Powers Act (1973) = effort to clarity division of responsibilities between Congress & P on war powers Rooted in Congress’ frustration with lack of input in

Vietnam conflict (mid-1960s to early 1970s)

Presidential powers dealing with armed conflict rooted in constitutional role as commander-in-chief of the armed services Not clear what powers conferred by this, but -- as noted

earlier in this topic -- courts have interpreted the role broadly, giving vast powers to conduct war given to President

Congress also has a role in war

Declares war (though often evaded)

War of 1812, Mexican-American War of 1848,

Spanish-American War of 1898, World War I

(1917), and World War II (1941 – four

declarations)

Authorize purchases for and increases in

armed forces

Appropriate funds for war effort

Lacking clear division of responsibility

between the President and Congress,

history of confrontation between the

branches

This leads us to roots of congressional

unhappiness with its role in Vietnam &

how that produced the War Powers Act

Early 1960s – small number of US troops

assisted South Vietnam against North

Vietnam and its allies in the South

South Vietnam was US ally

North Vietnam was under Communist rule and

was an ally of Russia

Aug. ’64 torpedo attack on some US ships

innocently sailing in international waters in

Gulf of Tonkin off North Vietnam coast (?)

Subsequent investigation revealed that

US sonar operator error or error in sonar itself likely

So attack probably never took place at all!

US ships not in international waters but in North

Vietnamese coastal waters

US was cooperating with South Vietnamese military

operation against North Vietnam. US not innocently

sailing around.

President Johnson sought from Congress “Gulf

of Tonkin Resolution” to authorize use of force

by US to protect US troops

Immediate result of Resolution’s passage

was some bombing strikes against North

Vietnam

Subsequently vast expansion of US troops

in South Vietnam – over 500,000 at peak

As time went by, Congress felt it had been

tricked into major commitment on the

basis of initial faulty intelligence

Congress felt excluded from decision-

making after it passed Gulf of Tonkin

Resolution

War continued under President Nixon

Nov. ’73 Congress passes War Powers Act

over Nixon veto:

President ‘must’ consult with Congress ‘in

every possible instance’ before sending US

forces into action

After hostilities begin, President must consult

‘regularly’ with Congress

Various reports required of the President

Importantly, Congress reserves the right

to end hostilities:

Within 90 days after US troops are in action

(or immediate danger of action), the

President must withdraw troops unless a

declaration of war has been enacted or some

similar resolution.

Thus, in theory the President and those who

wish to support his actions must gain

majority support in Congress to keep US

forces in action.

Presidents undermine War Powers Act:

Every president has opposed to Act as violation

of presidential power as commander-in-chief

They routinely evade WPA –

1) Act directs Presidents to ‘consult’ with

‘Congress’ in ‘every possible instance’ &

‘regularly’ thereafter

But consultation ignored or it is done

immediately before hostilities with

congressional leaders

2) Report to Congress ‘taking note of’ or ‘consistent

with’ WPA rather than ‘in compliance with’ WPA

They may alternatively ignore Act altogether

How can presidents get away with this? 1. Presidents have maximum popular support at the

outset of any conflict [rally or rally round the flag effect], so public opinion will favor the President over Congress. Keep in mind that as a practical matter Congress can force

an end to hostilities only in the first 90 days, and this is when the use of force will be most popular & the President will have the highest approval ratings.

2. Courts have made some decisions on congressional complaints about violations of Act

Courts have generally held the issue is not a legal issue but rather a “political” question between the President and Congress, so those branches must work out their differences & not depend on the courts to intervene.

Overall - courts have decided to take a pass on this issue.

END

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08 Presidency(3)