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 [CAs 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 EVs 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 2
nd
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
Copyright 2010 Cengage
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]

Copyright 2010 Cengage
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 25
th
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 hes 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 hes OK

3)P says hes 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 & 25
th
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 2
nd
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
Copyright 2011 Cengage
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 2/3
rd
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}
Copyright 2013 Cengage
Sources: Norman J. Ornstein, Thomas E. Mann, and Michael
J. Malbin, Vital Statistics on Congress, 20022003 (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, Ps 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
Copyright 2013 Cengage
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),
110111. Copyright 1975 by
Little, Brown and Company, Inc.
Reprinted by permission.
Updated with Gallup poll data,
19762011. 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 Resolutions 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