What the President Can and Cannot Do

When you go to the ballot box to vote for a presidential candidate, it is important to understand what you are electing them to do. Article II of the United States Constitution details presidential eligibility and responsibilities. As with most political power, power is checked by another branch of government. The separation of powers and checks and balances on that power ensures that one branch of government cannot become too powerful. As you will see, most presidential power is checked by another branch of the government – the legislative or judicial branches. However, there are some key areas in which the president possesses more unilateral power.

To be clear before moving on, it is important to acknowledge the distinction between the president (the individual who occupies the presidency) and the presidency (the institution/role governed by rules set forward in Constitution). A president’s strengths, character, and abilities are often instrumental to their success or failure in the presidency.

When you elect a President, what can he/she do?

Before taking office, the President takes the following oath:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States” (Article II, Section 1 of the Constitution).

When talking about presidential powers, scholars usually distinguish between expressed and implied powers. Expressed powers are the powers explicitly granted to the President in the Constitution. Implied powers are powers not expressly stated in the Constitution, but have been interpreted by presidents as necessary to faithfully execute laws and defend the Constitution. I detail expressed and implied powers below.

Expressed Powers

  • Executive Powers (Article II, Section 2 & 3)
    • Execute laws (via the federal bureaucracy)
    • Appoint officers of the federal government: Most of these appointments require Senate approval.
  • Legislative Powers (Article II, Section 3)
    • Veto legislation passed by Congress: This veto can be overridden by a two-thirds vote in both the House of Representatives and the Senate (Article I, Section 7). Rather than use the veto power, presidents often threaten to use it – to success. For some context:
      • President F. Roosevelt: 635 vetoes, 9 overridden
      • President Reagan: 78 vetoes, 9 overridden
      • President Clinton: 37 vetoes, 2 overridden
      • President Bush: 12 vetoes, 4 overridden
      • President Obama: 12 vetoes, 1 overridden
    • Deliver State of the Union Address: This power serves agenda-setting and persuasive purposes.
    • Make policy recommendations: Of course, these recommendations require cooperation from and approval by Congress.
    • Convene and adjourn Congress: The president may do so only under extreme circumstances – President Lincoln did so after the outbreak of the Civil War; President George W. Bush did so in the aftermath of Katrina.
  • Judicial Powers (Article II, Section 2)
    • Appoint justices to the Supreme Court: A simple majority of Senators must approve the president’s appointments.
      • Here is a great resource on the nomination and appointment process
    • Appoint judges to federal courts: The president’s appointments must be approved in the Senate.
    • Grant pardons and reprieves: This power is limited by prospect of reelection; thus, they largely occur during the President’s last days in office.
  • Diplomatic and Military Powers (Article II, Section 2)
    • Appoint ambassadors: The Senate must approve the president’s appointments.
    • Receive ambassadors and other public ministers (Article II, Section 3): Receiving and appointing ambassadors effectively gives the president power to recognize the legitimacy of other nations. By withdrawing its Cuban ambassador, for example, the United States effectively ended their diplomatic recognition of Cuba.
    • Enter into treaties with other nations: These treaties require ratification by two-thirds of the Senate.
    • Serves as commander in chief: While the president cannot declare war (Congress does that), they can engage troops in military conflict in the interest of protecting and preserving the Constitution. This power has expanded over time, and Congress has attempted to restrain this power. Despite congressional efforts (i.e., the War Powers Resolution of 1973), this power is one of the most historically controversial powers.

Implied Powers

  • Executive Powers
    • Organize federal bureaucracy: The president can establish offices necessary to “faithfully execute the law.” Congress must approve department budgets. If the president creates a new department, Congress must approve its budget.
    • Issue executive orders and exercise executive privilege: These powers are taken both from the President’s Oath (Article II, Section 1), and Article II, Section 3, which states that the President “shall take Care that the Laws be faithfully executed.”
      • Presidents use executive orders in order to meet their obligation to “faithfully execute” the laws of the nation. Executive orders are declarations issued by the President that relate to the organization of the federal bureaucracy, the execution of federal legislation, and the enforcement of federal court decisions. Executive orders do not require Congressional approval but can be ruled unconstitutional by the Supreme Court or repealed by subsequent administrations. For example, President Nixon issued an executive order to create the Environmental Protection Agency (EPA), and President Eisenhower issued an executive order to enforce court-ordered desegregation of Central High School in Little Rock, Arkansas. President Obama’s executive order, which effectively offered temporary amnesty to nearly five million undocumented immigrants residing in the U.S., (arguably) stands as the furthest reach of this power historically. It is currently being challenged in the Supreme Court.
      • Executive privilege is the act of withholding information from congressional, judicial, or public scrutiny. President Nixon claimed executive privilege during Watergate, which the Supreme Court subsequently dismissed. However, their ruling did recognize “the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties” (United States v. Nixon).
    • Diplomatic Power
      • Enter into executive agreements: Due to difficulties associated with gathering enough congressional support to ratify treaties, presidents enter into executive agreements with foreign nations. These executive agreements may or may not require congressional approval and may require federal legislation or congressional funding to execute the terms of the agreement.
      • Serves as symbolic head of state in representing the United States throughout the world

Both of the interpretations of expressed and implied presidential powers have grown substantially over time. Once power and responsibility is delegated to the President, it is not easily taken back. The modern presidency is the strongest in United States history.

When considering presidential power, here are a few other things to consider

Other Presidential Powers

  • Executive
    • Recommend department budgets (delegated)
  • Public Opinion
    • Represent the will of the public
    • Shape national agenda
  • Political Party
    • Implement party priorities
    • Shape the agenda of the party
    • Symbolic party head

Who is eligible to become President? (Article II, Section 1 of the Constitution)

  • ‘Natural born citizen’ or citizen of the United States (yes, this includes Ted Cruz)
  • At least 35 years old
  • Resided in the U.S. for at least 14 years
  • President can serve two terms (22nd Amendment)

How is a President removed from office?

  • Impeachment for conviction of treason, bribery, or other high crimes and misdemeanors (Article II, Section 4 of the Constitution)
  • In case of death, resignation, or temporary disability, the vice president becomes president (25th Amendment)

Certainly, the office of the presidency is an influential one, but it is not unlimited – most presidential powers are checked by other branches of government. The President may have the appointment authority, but bitter confirmation battles over Merrick Garland and Loretta Lynch remind us that this authority is not absolute. In my opinion, the areas that present the greatest potential for presidential abuse reside in the executive order, privilege, and agreement powers. With these implied powers, presidents can act unilaterally without (initially) needing congressional approval in broad executive, legislative, and diplomatic capacities. I believe that this is where the character of a presidential candidate enters into the decision calculus.

Before you cast your vote for the next President of the United States, I think it is important to ask:

  • Who is most qualified to execute the constitutional and extra-constitutional roles and responsibilities outlined above according to my worldview?
  • Who will respect the checks and balances on presidential power? Who do I trust to not abuse this power?
Barak Obama by Jose Luis Agapito (CC BY-NC-ND 2.0)

Barak Obama by Jose Luis Agapito (CC BY-NC-ND 2.0)

 

*I take responsibility for any and all errors in this post.

3 thoughts on “What the President Can and Cannot Do

  1. I really like this segment. I like the fact that the judicial nomination process has a link that really outlines the procedure. I was wondering about the ‘natural born citizen’ section. I know that Winston Churchill was born in England but his mother was from the United States, so would he have qualified for the Presidency as well (if he had lived here)?

  2. This article and what we learned in the first few weeks of class have really helped me to see the different powers that each branch of government has. I feel like because the president gets so much attention in what he does, the other branches of government are oftentimes forgot about, even though they do have plenty of power as well. When we think of how this nation is run, the first thing that comes to mind isn’t congress, or the Supreme Court, or the House of Representatives, it’s the president. The president in everyone’s mind reigns supreme. And although the president does have plenty of power, I feel that people forget that he can’t just do whatever he wants with no approval. When Donald Trump says that he is going to build a wall between Mexico and the United States, he can’t just step into the Oval Office, declare it, and have it done. He would have to go through a step by step process of getting this approved, and that would involved the other branches of government. I think it is important that everyone in this country understand the different things that each branch of government does, because it is something that can be useful to all of us.

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